Vol 87 No 15 (May 28) - Oklahoma Bar Association

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Volume 87 u No. 15 u May 28, 2016
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The Oklahoma Bar Journal
Vol. 87 — No. 15 — 5/28/2016
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Vol. 87 — No. 15 — 5/28/2016
Volume 87 u No. 15 u May 28, 2016
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1092
Vol. 87 — No. 15 — 5/28/2016
Oklahoma Bar Association
table of
contents
May 28, 2016 • Vol. 87 • No. 15
page
1094 Index to Court Opinions
1095Opinions of Supreme Court
1104 Sovereignty Symposium Agenda
1108 Opinions of Court of Criminal Appeals
1112 Calendar of Events
1113
Opinions of Court of Civil Appeals
1131
Disposition of Cases Other Than by Publication
Vol. 87 — No. 15 — 5/28/2016
1093
Index to Opinions of Supreme Court
2016 OK 52 RE: Revocation of Credentials of Registered Courtroom Interpreters SCAD2016-40................................................................................................................................................. 1095
2016 OK 53 State of Oklahoma ex rel. Oklahoma Bar Association, Complainant, v. Michael
K. Redd Respondent. Case Number: SCBD-6385......................................................................... 1095
2016 OK 54 IN RE AMENDMENT TO RULES GOVERNING ADMISSION TO PRACTICE OF LAW SCAD-2016-39......................................................................................................... 1096
2016 OK 55 AMERICAN BIOMEDICAL GROUP, INC.; ABG CATTLETRAQ, LLC; and
JAMES BURGESS, Plaintiffs/Appellants, v. TECHTROL, INC. and WILLIAM
ARDREY, Defendants/Appellees. No. 113,978............................................................................. 1097
Index to Opinions of Court of Criminal Appeals
2016 OK CR 10 ROBERT LEE REED, Appellant, v. STATE OF OKLAHOMA, Appellee.
No. F-2014-792.................................................................................................................................... 1108
Index to Opinions of Court of Civil Appeals
2016 OK CIV APP 29 FLOYD MANAR and MARGIE M. MANAR, Plaintiffs/CounterDefendants/Appellees/Counter-Appellants, vs. JAMES H. WESSON and JAMIE
WESSON, Defendants/Counter-Claimants/Appellants/Counter-Appellees. Case
No. 113,310...........................................................................................................................................1113
2016 OK CIV APP 30 BRENDA G. WEAVER, as Power of Attorney of VIRGINIA QUAY
WEAVER, Plaintiff/Appellee, vs. JOHN DOE, individually, and JOHN DOE, as
Agent of PEAK MEDICAL OKLAHOMA NO. 3, INC., d/b/a FOREST HILLS CARE
AND REHABILITATION CENTER, Defendants/Appellants. Case No. 113,532.....................1116
2016 OK CIV APP 31 IN RE THE MARRIAGE OF KING ANDREA NICOLE KING, Petitioner/Appellee, and DANIEL ZEBULON KING, Respondent/Appellant. Case No.
113,628.................................................................................................................................................. 1122
2016 OK CIV APP 32 AUSTIN N. SHOPTAW, Plaintiff/Appellee, vs. STATE OF OKLAHOMA ex rel. DEPARTMENT OF PUBLIC SAFETY, Defendant/Appellant. Case No.
113,405.................................................................................................................................................. 1126
1094
Vol. 87 — No. 15 — 5/28/2016
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 52
RE: Revocation of Credentials of
Registered Courtroom Interpreters
SCAD-2016-40. May 9, 2016
ORDER
On February 15, 2016, this Court suspended
the certificates of two registered courtroom
interpreters for failure to comply with the
annual certificate renewal requirements for
2016. See 2016 OK 22 (SCAD 2016-14). The
Oklahoma Board of Examiners of Certified
Courtroom Interpreters has advised that the
courtroom interpreters listed below continue
to be delinquent in complying with annual
certificate renewal requirements, and the Board
has recommended to the Supreme Court of the
State of Oklahoma the revocation of the credential of each of these interpreters, effective
April 15, 2016, pursuant to 20 O.S., Chapter 23,
App. II, Rule 18.
IT IS THEREFORE ORDERED that the credential of each of the registered interpreters
named below is hereby revoked effective April
15, 2016.
Ariel Nuncio
Alyssa Olvera
DONE BY ORDER OF THE SUPREME
COURT IN CONFERENCE this 9th day of
MAY, 2016.
/s/ John F. Reif
CHIEF JUSTICE
ALL JUSTICES CONCUR.
2016 OK 53
State of Oklahoma ex rel. Oklahoma Bar
Association, Complainant, v. Michael K.
Redd Respondent.
Case Number: SCBD-6385. May 9, 2016
ORDER APPROVING RESIGNATION
PENDING DISCIPLINARY PROCEEDINGS
¶1 Respondent, Michael K. Redd applied,
pursuant to Rule 8.1 of the Rules Governing
Disciplinary Proceedings (RGDP), (5 O.S. 2011
Vol. 87 — No. 15 — 5/28/2016
Ch. 1, App. 1-A), for an order approving his
resignation pending disciplinary proceedings.
Respondent’s application and affidavit of resignation reveal the following:
¶2 On April 13, 2016, Respondent executed
and filed with this Court his affidavit of resignation from membership in the Oklahoma Bar
Association pending disciplinary proceedings.
¶3 Respondent’s affidavit reflects: a) it was
tendered freely and voluntarily; b) he was not
subjected to coercion or duress; c) he is aware
of the consequences of submitting his resignation; and d) he is aware his resignation is
subject to approval of the Supreme Court of
Oklahoma and he intends his resignation to
be effective from the date and time of the affidavit’s execution.
¶4 Respondent’s affidavit sets forth his
acknowledgment of the following grievances:
A. Arkansas
A pending grievance currently under investigation by the Arkansas Office of Professional
Conduct for Respondent’s alleged embezzlement in excess of $100,000.00 while a managing member of Robertson, Beasley, Shipley &
Redd, PLLC, a law firm. Respondent admits,
that upon a forensic audit of firm’s funds, the
Arkansas Office of Professional Conduct will
have sufficient evidence to support the allegations as alleged. Respondent, however, has
made financial restitution for the converted
funds satisfactory to the law firm. Additionally, as a result of that investigation, Respondent
executed a Petition to Surrender Law License
to the Supreme Court Committee on Professional Conduct in the State of Arkansas.
B. Oklahoma
Respondent’s affidavit also acknowledges
the ongoing investigation of grievance DC
16-39 by the Oklahoma Bar Association. Specifically, John R. Beasley, Respondent’s colleague, filed a grievance alleging that Respondent, in his capacity as a managing member of
Beasley, Shipley & Redd, PLLC in Arkansas,
embezzled a substantial amount of money
“likely in excess of $100,000.00” from the firm.
1095
At the time Respondent’s affidavit was executed, the Bar Association had not completed its
investigation and Respondent’s time to respond
to the allegation had not expired. Respondent,
however, expressly waived his right to respond.
¶5 Respondent’s affidavit states that he understands if his resignation is accepted by the
Supreme Court of Arkansas, the Oklahoma Bar
Association will have sufficient grounds to initiate reciprocal disciplinary proceedings pursuant
to Rule 7.7, RGDP, 5 O.S. 2011, Ch. 1 App. 1-A.
Rather than face reciprocal discipline, Respondent tenders this Rule 8 Application for Resignation Pending Disciplinary Proceedings.
¶6 Respondent’s affidavit of resignation
states Respondent is aware that the allegations
against him, if proven, would constitute violations of Rule 1.3 of the Rules Governing Disciplinary Proceedings (RGDP) and Rules 1.15
and 8.4(a), (c), and (d) of the Oklahoma Rules
of Professional Conduct (ORPC), 5 O.S. 2011
Ch. 1, App. 3-A., and his oath as an attorney.
¶7 Respondent states he is aware that the
burden of proof regarding the allegations
against him lies with the Oklahoma Bar Association, and he waives any and all rights to
contest the allegations.
¶8 Respondent’s affidavit states he is familiar with the provisions of Rule 9.1, RGDP, and
agrees to comply with all provisions of Rule 9.1
within twenty (20) days following the Court’s
approval of his resignation pending disciplinary proceedings.
¶9 Respondent states he is aware that the
approval or disapproval of his resignation is
within the discretion of the Supreme Court of
Oklahoma under Rule 8.2, RGDP.
¶10 Respondent acknowledges and agrees
he may only be reinstated to the practice of law
only upon full compliance with the conditions
and procedures prescribed by Rule 11, RGDP,
and he may make no application for reinstatement prior to the expiration of five (5) years
from the effective date of the Order approving
Resignation Pending Disciplinary Proceedings.
¶11 Respondent states he is aware the Client
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 Security Fund for claims
against him. Rule 11.1(b), RGDP, State ex rel.
1096
Oklahoma Bar Association v. Heinen, 2003 OK
36, ¶ 9, 84 P.3d 708, 709.
¶12 Respondent has surrendered his Oklahoma Bar Association membership card to the
Office of General Counsel.
¶13 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 Application for approval for 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 Michael K. Redd, OBA No.
12447, 2110 Euper Court, Ft. Smith, Arkansas
72903.
¶16 IT IS THEREFORE ORDERED that the
application by the Bar Association for an order
approving Michael K. Redd’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 costs are
not awarded due to the express statement by
the Oklahoma Bar Association that no costs
were incurred.
¶18 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 the Fund prior to reinstatement.
¶ 19 DONE BY ORDER OF THE SUPREME
COURT IN CONFERENCE this 9TH day of
May 2016.
/s/ John F. Reif
Chief Justice
ALL JUSTICES CONCUR.
2016 OK 54
IN RE AMENDMENT TO RULES
GOVERNING ADMISSION TO PRACTICE
OF LAW
SCAD-2016-39. May 9, 2016
ORDER
Vol. 87 — No. 15 — 5/28/2016
The following amendment to Rule 9, Rules
Governing Admission to the Practice of Law in
the State of Oklahoma, Okla. Stat. tit. 5, ch. 1,
app. 5, which provides for a temporary permit
to practice law for certain persons employed
by a qualified legal services provider is hereby
adopted and is attached as an exhibit to this
Order.
DONE BY ORDER OF THE SUPREME
COURT IN CONFERENCE THIS 9th day of
May, 2016.
/s/ John F. Reif
CHIEF JUSTICE
Reif, C.J., Combs, V.C.J., Watt, Edmondson,
Taylor, Colbert and Gurich, JJ., concur;
Kauger and Winchester, JJ., not voting.
Rules Governing Admission to the Practice of
Law in the State of Oklahoma
Okla. Stat. tit. 5
ch. 1, app. 5
Rule 9. Temporary Permits.
A. Temporary permits to practice law until
the conclusion of the next succeeding bar
examination and report of the results thereof
may be granted upon the recommendation of
the Board of Bar Examiners after a showing of
public convenience and necessity, which shall
include but not be limited to a showing by a
qualified legal services provider as defined in
subsection B of this rule, and or in the private
sector where a case of extreme hardship is
shown, provided the applicant has taken and
passed the Multistate Professional Responsibility Examination. All applicants for temporary
permit to practice law shall file with the Board
of Bar Examiners an application for such temporary permit in addition to regular application for admission to the bar examination. The
Board shall, as soon as practicable, report its
recommendation on such application for temporary permit to the Supreme Court, together
with a copy of such application.
B. A “qualified legal services provider”
means a not for profit legal services organization whose primary purpose is to provide legal
services to low income clients or a legal department within a not for profit organization that
employs at least one (1) lawyer full-time to
provide legal services to low income clients.
Vol. 87 — No. 15 — 5/28/2016
2016 OK 55
AMERICAN BIOMEDICAL GROUP, INC.;
ABG CATTLETRAQ, LLC; and JAMES
BURGESS, Plaintiffs/Appellants, v.
TECHTROL, INC. and WILLIAM ARDREY,
Defendants/Appellees.
No. 113,978. May 17, 2016
ON CERTIORARI FROM THE COURT OF
CIVIL APPEALS, DIVISION I
¶0 Plaintiffs brought claims for conversion
of personal and intellectual property and
for unjust enrichment. Defendants sought
partial summary adjudication on the two
claims, urging that Oklahoma does not recognize a tort for misappropriation of intangible property not rising to the level of
trade secret and that Plaintiffs had an adequate remedy at law preventing them from
bringing a claim for unjust enrichment.
The district court rendered partial summary adjudication on the two claims in Defendants’ favor. The Court of Civil Appeals
affirmed, finding that pursuant to Section
92, the Oklahoma Uniform Trade Secrets
Act , 78 O.S.2011, § 92, displaced Plaintiffs’
common-law claims. This Court granted
certiorari.
COURT OF CIVIL APPEALS’ OPINION
VACATED; REVERSED AND REMANDED
FOR FURTHER PROCEEDINGS.
Murray E. Abowitz, Abowitz, Timberlake &
Dahnke, P.C., Oklahoma City, Oklahoma, for
Appellants.
James W. Tilly, The Tilly Law Firm, Tulsa, Oklahoma, for the Appellees.
TAYLOR, J.,
¶1 The question before this Court is whether
Defendants supported their motion for summary judgment with undisputed, material
facts sufficient to warrant the district court
granting partial summary adjudication in their
favor. We answer in the negative.
I. STANDARD OF REVIEW
¶2 Partial summary adjudication, like summary judgment, settles only questions of law.
See Pickens v. Tulsa Metropolitan Ministry, 1997
OK 152, ¶ 7, 951 P.2d 1079, 1082.The standard
of review of questions of law is de novo. Id.
Summary judgment or a partial summary
adjudication will be affirmed only if the appel-
1097
late court determines that there is no dispute as
to any material fact and that one party is entitled to judgment as a matter of law. See id. A
partial summary adjudication will be reversed
if the appellate court determines that reasonable people might reach different conclusions
from the undisputed material facts. See Runyon
v. Reid, 1973 OK 25, ¶15, 510 P.2d 943, 946.
¶3 Under this standard, we confine our
review to the limited, undisputed, material
facts. Frey v. Independence Fire and Cas. Co., 1985
OK 25, ¶ 6, 698 P.2d 17, 20 (“The ruling on a
motion for summary judgment must be rested
on the record which is then before the court
rather than on one that could have been assembled.”). We do not consider Defendants’ factual
allegations included in their appellate paperwork which they failed to include as undisputed, material facts or support with evidentiary
materials in the district court. See id.
II. RELEVANT PROCEDURAL HISTORY
¶4 This legal battle began in 2006 when
American Biomedical Group, Inc. (ABGI) and
ABG Cattletraq, LLC (Cattletraq) filed a petition in the district court against Techtrol, Inc.
and William Ardrey (Defendants); Defendants
then filed a counterclaim. ABGI and Cattletraq
dismissed their claims and causes of action
against Defendants (without prejudice), leaving
Defendants’ counterclaim pending. Two years
later, Defendants filed a petition in the same
court against ABGI, Cattletraq, and James Burgess, their sole shareholder and CEO (Plaintiffs).
¶5 On March 16, 2009, Plaintiffs filed another
petition in the district court, alleging that
Defendants “wrongfully exercised dominion
and control over plaintiffs’ personal and intellectual property” and “willfully, deliberately
and maliciously converted plaintiffs’ personal
and intellectual property” for their own benefit. Plaintiffs sought damages based on Defendants’ unjust enrichment from the conversion.
The district court consolidated the three cases.
When the cases were consolidated, Defendants’ counterclaim, Defendants’ petition alleging abuse of process, and Plaintiffs’ petition
alleging causes of action for conversion and
unjust enrichment remained pending before
the district court.
¶6 On October 29, 2014, Defendants moved
for summary judgment on Plaintiffs’ claim for
conversion, asserting that Oklahoma does not
recognize a tort for conversion of intangible
property, and for unjust enrichment, asserting
1098
Plaintiffs’ claim was precluded because they
had an adequate remedy at law for breach of
contract. The statement of undisputed, material facts in Defendants’ motion for summary
judgment listed the pleadings filed and an
excerpt from a deposition.1 The only undisputed, material facts alleged by Defendants
were (1) Plaintiffs filed a claim for the willfull,
deliberate, and malicious conversion of their
personal and intellectual property and a claim
for unjust enrichment caused by the conversion, and (2) part of Plaintiffs’ claims are based
on a nondisclosure agreement (NDA). Plaintiffs’ response admits the excerpt is from a
deposition and alleges twenty-one additional
facts, with supporting evidentiary materials,
that they contend may or may not be disputed
and preclude summary judgment in Defendants’ favor. Plaintiffs urged that (1) Oklahoma
does recognize a cause of action for conversion
of both personal and intellectual property
which, in this case, is not preempted by the
Oklahoma Uniform Trade Secrets Act (OUTSA),
78 O.S.2011, §§ 85-94, (2) they had pled facts
sufficient to make a prima facie claim of misappropriation under the OUTSA, and (3) they do
not have an adequate remedy at law which
would bar their claim for unjust enrichment.
¶7 Defendants and Plaintiffs each filed an
additional brief, somewhat altering their arguments. Defendants submitted that the OUTSA
preempts Plaintiffs’ conversion and unjust
enrichment claims, that Plaintiffs admitted that
they had no contractual remedy under the
NDA, and that Plaintiffs’ admitted failure to
identify its intellectual and personal property
as confidential under the NDA barred relief
under the OUTSA. Plaintiffs again contended
that their claim for conversion of confidential,
proprietary information is not displaced by the
OUTSA. After the district court held a hearing,
it granted Defendants’ motion for summary
judgment.2
¶8 Plaintiffs filed a petition in error, and the
appeal was assigned to the Court of Civil
Appeals. The Court of Civil Appeals affirmed
the district court. This Court granted Plaintiffs’
petition for certiorari review. This Court
ordered the parties to file briefs addressing
only the issues before this Court.
III. ALLEGED FACTS
¶9 These alleged facts are informational to
help clarify the dispute before this Court.
Because the record does not show that these
Vol. 87 — No. 15 — 5/28/2016
facts are undisputed, we do not rely on them in
rendering our decision.3 Plaintiffs contend that
they developed a protocol to monitor and track
cattle and a bolus containing technology to
accomplish this task. In October of 2004, the
parties entered into an oral agreement for
Defendants to manufacture the bolus to Plaintiffs’ specifications. About a month later, the
parties entered into the written NDA. The
NDA is part of the record and contains the following provision.
Subject to the limitations set forth in Section 2, all information disclosed by one
party (the “Discloser”) to the other party
(the “Recipient”), which is labeled or
marked “Confidential” or with some other
similar proprietary legend shall be deemed
to be “Confidential Information.” If Confidential Information is disclosed in oral form,
the Discloser shall identify it as confidential
at the time of disclosure and thereafter summarize it in writing and transmit such summary to the Recipient within thirty (30) days
of the oral disclosure.
The NDA restricts the disclosure and use of
confidential information, as defined above,
including the restriction that the recipient shall
“use such Confidential Information only to the
extent required to accomplish the Purpose.”
The purpose was defined as “the purpose and
evaluation and possible joint operations.” After
the parties entered into the NDA, Plaintiffs
supplied Defendants with what they contend
is confidential, proprietary information, including software, circuitry for biometric data, specifications, documents, drawings, chips, and
thermistors, as well as tangible property.
¶10 After they entered into the NDA, the
parties ended their business relationship. Since
then, Defendants have manufactured and sold
about 1,500 of the boluses. Plaintiffs alleged
that at least some of the information Defendants
used to manufacture and sell the boluses was
Plaintiffs’ confidential, proprietary information
and tangible property not subject to the NDA.
IV. ANALYSIS
¶11 Based on the parties’ briefs on the issues
before this Court, we determine the legal issues
to be (1) whether Oklahoma recognizes a common-law action for misappropriation of intangible, proprietary property, (2) if so, whether
the OUTSA displaces Plaintiffs’ common-law
claims, (3) whether information disclosed to
Defendants by Plaintiffs without the “confiVol. 87 — No. 15 — 5/28/2016
dential” marking required by the NDA is subject to a common-law claim for conversion, (4)
whether Plaintiffs have an adequate remedy at
law which bars their claim for unjust enrichment, and (5) if this Court finds the OUTSA
displaces Plaintiffs’ common-law claims,
whether the decision should be applied prospectively only.4
A. Common-law Claims
¶12 Conversion is defined by Oklahoma law
as “any act of dominion wrongfully exerted
over another’s personal property in denial of
or inconsistent with his rights therein.” Steenbergen v. First Fed. Sav. & Loan of Chickasha, 1987
OK 122, ¶ 9, 753 P.2d 1330, 1332. This definition
does not include intangible property. It does
require that “some form of wrongful possession or act of control over the property must
occur.” Installment Fin. Corp. v. Hudiburg Chevrolet, Inc., 1990 OK 55, ¶ 10, 794 P.2d 751, 753. It
is not necessary that the property wrongfully
came into a party’s possession, but only that
the property was taken or appropriated without the owner’s consent. Fed. Nat’l Bank of
Shawnee v. Lindsey, 1935 OK 455, ¶ 12, 43 P.2d
1036, 1037; Steenbergen, 1987 OK 122, ¶ 9, 753
P.2d at 1332. Conversion of personal property
does not require the property be obtained by
wrongful means, but it must be either obtained
or appropriated without the owner’s consent.
Id. Here, Defendants have failed to provide
evidentiary support or even aver that they
appropriated Plaintiffs’ personal property
without the Plaintiffs’ permission, and Plaintiffs have not admitted this fact. Thus, partial
summary adjudication in Defendants’ favor
was improper on this issue.
¶13 Oklahoma does not recognize the tort of
conversion of intangible property in the same
manner as it does for personal property. Shebester v. Triple Crown Insurers, 1992 OK 20, ¶ 14,
826 P.2d 603, 608 (“The general rule in Oklahoma is that only tangible personal property may
be converted.”). However, Oklahoma has recognized the tort of misappropriation of business information, an intangible, as stated in
ABC Coating Co. v. J. Harris & Sons Ltd., 1986
OK 28, ¶ 20, 747 P.2d 266, 270:
One who, for the purpose of advancing a
rival business interest, procures by improper means information about another’s business is liable to the other for the harm
caused by his possession, disclosure or use
of the information.
1099
Id. (quoting the Restatement (First) of Torts, § 759
(“Procuring Information by Improper Means”)).
Under Section 759, improper means include, not
only “theft, trespass, brib[ery], fraudulent misrepresentation, threats of harm by unlawful
conduct,” etc., but also “breach of contract,
abuse of confidence or impropriety in the means
of procurement.” Id. (referencing Restatement
(First) of Torts, § 757, Comment on Clause (a)).
¶14 The comment to the Restatement (First) of
Torts, Section 757 explains that one who receives
information that does not meet the definition
of a trade secret and who is in a confidential
relationship or obtains the information through
improper means may be liable. The liability is
based on the abuse of confidence or the impropriety in learning the secret, making wrongful
procurement of the information a necessary
element of misappropriation of confidential
information, whether or not it rises to the level
of trade secret. ABC Coating Co., 1986 OK 28, ¶
22, 747 P.2d at 270.
¶15 Oklahoma recognized the common-law
tort of misappropriation of confidential business information in Central Plastics Co. v. Goodson, 1975 OK 71, ¶ 17, 537 P.2d 330, 333. Central
Plastics treated trade secrets and confidential
information as different forms of a business
property and recognized that both have a substantial element of secrecy. Id. (citing Aetna
Bldg. Maint. Co. v. West, 246 P.2d 11 (Cal. 1952))
(“Trade secrets and confidential information,
in order to be protected against disclosure by
employees, must be the particular secrets of the
employer as distinguished from the general
secrets of the trade in which he is engaged.”).
In order to be protected, the property “must be
the particular” owner’s secrets, even though
the owner may disclose it to others who are
legally obligated to protect it, and not just
secrets of the trade. Id. In Central Plastics,
because the information was not secret to the
owner, there was no wrongdoing in the procurement. Id.
¶16 In ABC Coating Co., the plaintiff, a company in the steel-rebar coating business, alleged
that the defendant company fraudulently
obtained the plaintiff’s trade secret and confidential business information and disclosed it to
others. 1986 OK 28, ¶ 22,747 P.2d at 270. The
jury returned a verdict on the fraud issue in
favor of the defendant. Id. The plaintiff, having
failed to prove the element of procurement by
improper means, was not entitled to recover.
Id. It made no difference to the ABC Coating
1100
Court whether the plaintiff’s coating process
was a trade secret or confidential information.
Id. ¶ 23, 747 P.2d at 271. As with ABC Coating,
the cases on which Defendants rely can be
viewed as there was no cause of action if the
information was not confidential or, if the
information was confidential, it was not wrongfully procured.
¶17 Plaintiffs contend that only information
marked confidential is subject to the NDA.
Therefore, Plaintiffs submit that any information given to Defendants which was not
marked as confidential is not subject to the
NDA, Defendants’ use of unmarked information cannot be brought as a breach of contract,
and the information is subject to a claim for
conversion. The NDA is subject to our laws
governing contracts. A contract’s terms are to
be given their plain meaning. 15 O.S. 2011, §
160; Lucas v. Bishop, 1998 OK 16, ¶ 11, 956 P.2d
871, 874. The NDA explicitly requires that any
informational disclosures be marked “confidential” and, if orally disclosed, it be identified
as confidential and a summary of the information be sent within thirty days of disclosure.
The NDA limited a recipient’s use of the information properly identified as confidential. The
NDA clearly expresses the parties’ intent that
only the use of information properly marked
or identified as confidential be restricted. It
does not address the use of intangibles which
may not be information or the use of tangibles.
¶18 The NDA controls the parties’ use of
information, whether or not marked confidential. Plaintiffs cannot benefit from their own
failure to comply with the NDA and mark
information as confidential before sharing it
with Defendants since the Defendants’ procurement of the information would not be
wrongful. However, the NDA does not control
use of intangibles which are not information
nor does it control use of tangibles. Nonetheless, Defendants’ quest for summary judgment
must fail because they have failed to support
their argument with undisputed facts backed
by evidentiary materials.5
B. Preemption
¶19 Defendants urge that it matters not
whether Oklahoma recognizes a common-law
tort for misappropriation of property not meeting the definition of trade secret because this
cause of action is displaced by the OUTSA. The
OUTSA defines trade secret as
Vol. 87 — No. 15 — 5/28/2016
information, including a formula, pattern,
compilation, program, device, method,
technique or process, that:
a. derives independent economic value,
actual or potential, from not being generally known to, and not being readily
ascertainable by proper means by, other
persons who can obtain economic value
from its disclosure or use, and
b. is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.
78 O.S.2011, § 86(4). The OUTSA affords protection for trade secrets and consequences for
their misappropriation. Id. §§ 87-89. These
include (1) injunctions, id. § 87, (2) damages of
actual loss and for unjust enrichment or damages of a reasonable royalty, id. § 88, (3) exemplary damages of twice the amount of actual
damages if the misappropriation is willful and
malicious, id. § 88, and (4) in certain cases, an
award of attorney’s fees. Id. § 89.
¶20 The OUTSA’s exemptions found in Section 92 are the crux of this issue. Section 92
provides:
A. Except as provided for in subsection B
of this section, the Uniform Trade Secrets
Act displaces conflicting tort, restitutionary, and other laws of this state providing
civil remedies for misappropriation of a
trade secret.
ness information, one that is protected by the
acts and one that has no protection either
under the acts or the common-law. Mortgage
Specialists, Inc. v. Davey, 904 A.2d 652, 664 (N.H.
2006). Other courts have determined that similar acts are unambiguous and, by their clear
language, do not displace a common-law conversion claim of business information not
meeting the definition of trade secrets. Miller
UK LTD. V. Caterpillar Inc., 859 F.Supp.2d 941,
947 (N.D. Ill. 2012). Because of the inconsistency in the uniform act’s construction, we are
not compelled by the uniformity goal to follow
any particular jurisdiction.
¶22 In construing a statute, our goal is to
determine the Oklahoma Legislature’s intent,
and not the intent of other state legislatures.
Heldermon v. Wright, 2006 OK 86, ¶ 12, 152 P.3d
855, 859. If the legislative intent is clear from a
statute’s plain and unambiguous language,
this Court need not resort to rules of statutory
construction. Id. When a statute’s language is
unambiguous, its words will be given their
obvious and ordinary meaning and will be followed without additional inquiry. Okla. City
Zoological Trust v. State ex rel. Public Emps. Relations Bd., 2007 OK 21, ¶ 6, 158 P.3d 461, 464.
3. criminal remedies, whether or not based
upon misappropriation of a trade secret.
¶23 By its unambiguous language, Section
92(A) of the OUTSA displaces conflicting tort
claims only for “misappropriation of a trade
secret.” It does not displace tort claims for
information not meeting this definition. Section 92(B)(2) leaves in place torts not based on
misappropriation of a trade secret. If the Legislature had intended to displace a cause of
action for misappropriation of business information not falling within the statutory definition of trade secret, it could have done so. The
Legislature chose not to include business information not meeting its statutory definition of
trade secret in Section (92)A’s displacement
provision, and we are bound by the Legislature’s decision.
¶21 Section 92(A) calls for the OUTSA to displace this state’s conflicting tort law providing
civil remedies for misappropriation of a trade
secret, except as provided in Section 92(B). Section 92(B) allows civil remedies for torts that
are not based on misappropriation of a trade
secret. Although one goal of the uniform act
was to make states’ trade secret laws uniform,
states have not been consistent in its construction. Some courts have taken the view that
similar trade secret acts create two sets of busi-
¶24 This construction is in keeping with the
intent of the uniform act. The comment to Section 7 of the UTSA (Oklahoma’s Section 92),
states that the uniform act “is not a comprehensive statement of civil remedies,” and “does
not apply to a duty imposed by law that is not
dependent upon the existence of competitively
significant secret information.” This language
indicates that the uniform act’s authors did not
intend the displacement provision to apply to
the common-law cause of action for misappro-
B. The Uniform Trade Secrets Act does not
affect
1. contractual remedies, whether or not
based upon misappropriation of a trade
secret; or
2. other civil remedies that are not based
upon misappropriation of a trade secret; or
Vol. 87 — No. 15 — 5/28/2016
1101
priation of business information not rising to
the level of a trade secret.
¶25 In further support of this construction,
Title 12, Section 2 of the 2011 Oklahoma Statutes states:
The common law, as modified by constitutional and statutory law, judicial decisions
and the condition and wants of the people,
shall remain in force in aid of the general
statutes of Oklahoma . . . .
Pursuant to this provision, this Court will not
presume an abrogation of the common law
from a statutory provision. Brashier v. Farmers
Ins. Co., Inc., 1996 OK 86, ¶ 8, 925 P.2d 20, 24
(overruled in part on other grounds by Barnes
v. Okla. Farm Bureau Mut. Ins. Co. 2000 OK 55,
11 P.3d 162). A statutory abrogation of the common law must be expressed in clear and plain
language. Id. “Where the common law gives a
remedy, and another is provided by statute, the
latter is merely cumulative, unless the statute
declares it to be exclusive.” Id. Section 92 of the
OUTSA does not clearly express that it abrogates or displaces the common law tort of misappropriation of business information not
qualifying as a trade secret under the OUTSA.
Quite the contrary, Section 92 and the comments thereto exempt this common-law tort
from its displacement provision.
¶26 Like other alleged facts in this case, neither party has alleged facts supported by evidentiary material that show at least some, if
not all of the property at issue falls outside the
OUTSA’s definition of trade secret.6 Because
this determination is necessary to a finding
that Plaintiffs’ causes of action are displaced by
the OUTSA, partial summary adjudication was
improper as to issues based on determination
of this fact.
C. Unjust Enrichment
¶28 To the extent that Defendants can show
that information was “involuntarily acquired”
under the NDA with no obligation to make
restitution, they are not subject to a claim for
unjust enrichment. Again, they have failed to
make this showing as to all the property at
issue here which would entitle them to partial
summary adjudication on this issue.
V. CONCLUSION
¶29 Defendants failed to show that they were
entitled to summary judgment. Throughout
their arguments before the district court and
this Court, Defendants rely on allegations
which they have failed to allege as undisputed
in their motion for summary judgment, which
have no supporting evidentiary materials, and
which Plaintiffs contest or which Plaintiffs
have not admitted.
¶30 The Court of Civil Appeals’ opinion is
vacated. The judgment of the district court is
reversed. The cause is remanded for further
proceedings.
COURT OF CIVIL APPEALS’ OPINION
VACATED; REVERSED AND REMANDED
FOR FURTHER PROCEEDINGS.
CONCUR: Combs, V.C.J.; and Kauger, Watt,
Winchester, Edmondson, Taylor, Colbert, and
Gurich, JJ.
NOT PARTICIPATING: Reif, C.J.
¶27 During various times during this litigation, Defendants have asserted that Plaintiffs
cannot bring an unjust enrichment claim
because Plaintiffs have an adequate remedy at
law under the NDA or because Plaintiffs failed
to mark certain property as confidential under
the NDA. Unjust enrichment arises “from the
failure of a party to make restitution in circumstances where it is inequitable,” or one party
holds property “that, in equity and good conscience, it should not be allowed to retain.”
Harvell v. Goodyear Tire and Rubber Co., 2006 OK
24, ¶ 18, 164 P.3d 1028, 1035. “One is not unjust1102
ly enriched, however, by retaining benefits
involuntarily acquired which law and equity
give him absolutely without any obligation on
his part to make restitution.” McBride v. Bridges, 1950 OK 25, ¶ 8, 215 P.2d 830, 833. Further, a
party is not entitled to pursue a claim for
unjust enrichment when it has an adequate
remedy at law for breach of contract. Krug v.
Helmerich & Payne, Inc., 2015 OK 74, ¶ 6, 362
P.2d 205, 209.
TAYLOR, J.,
1. Rule 13(a) of the Rules for Districts Courts of Oklahoma, 12
O.S.2011, ch. 2, app., provides in part:
A party may move for either summary judgment or summary
disposition of any issue on the merits on the ground that the
evidentiary material filed with the motion or subsequently filed
with leave of court show that there is no substantial controversy
as to any material fact. The motion shall be accompanied by a
concise written statement of the material facts as to which the
movant contends no genuine issue exists and a statement of
argument and authority demonstrating that summary judgment or summary disposition of any issues should be granted.
Reference shall be made in the statement to the pages and paragraphs or lines of the evidentiary materials that are pertinent to
the motion. Unless otherwise ordered by the court, a copy of the
material relied on shall be attached to or filed with the statement.
(Emphasis added).
Vol. 87 — No. 15 — 5/28/2016
2. The district court certified the order to this Court pursuant to
Title 12, Section 994 of the 2011 Oklahoma Statutes.
3. In Defendants statements of material fact, the ninth, the only one
relevant here, is a quote from a James Burgess’ deposition showing that
Plaintiffs are pleading a cause of action for conversion of personal and
intellectual property and are seeking damages for unjust enrichment.
4. Because of our resolution of the issues addressed in this opinion,
we need not address other issues raised by the parties in their briefs to
this Court. As the parties were directed to file briefs addressing only
the issues in this appeal, we need not address those raised in the district court and not included in their briefs before this Court.
5. Defendants assert that Plaintiffs admitted in their response to
summary judgment that they failed to mark certain information as
confidential. We decline to read Plaintiffs’ argument in their response
in such broad terms as to constitute an admission.
6. Defendants argue that the OUTSA preempts claims for conversion of tangible property as well as intangible because the tangible
property is intertwined with the intellectual property such that the
tangible property has no separate value. Again, Defendants fail to offer
any support that this allegation is true and uncontested.
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Vol. 87 — No. 15 — 5/28/2016
1103
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
DAN BOREN, President of Corporate Development, Division of
Commerce, Chickasaw Nation
JONNA D. KAUGER KIRSCHNER, Vice President, Economic
Development, Chickasaw Nation Industries
DEREK OSBORN, Legislative Assistant to
Senator James Lankford
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
KELLY HANEY, (Seminole), Artist, former Oklahoma State Senator,
former Chief of the Seminole Nation
STU OSTLER, Oklahoma State Capitol Photographer
1104
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
RODGER RANDLE, Professor, College of Arts and Sciences,
University of Oklahoma
8:30 – 12:00 PANEL C: TRUTH AND RECONCILIATION:
GENERATIONAL/HISTORICAL TRAUMA AND HEALING
MODERATOR: NOMA GURICH, Justice, Oklahoma
Supreme Court
DON WHARTON, 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
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
Vol. 87 — No. 15 — 5/28/2016
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 Britannic Majesty’s Consul-General
PRESENTATION OF AWARDS, YVONNE KAUGER, Justice,
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, (Chickasaw)
LAUREN KING, (Muscogee (Creek), Foster Pepper PLLC,
Appellate Judge – Northwest Intertribal Court System
MICHAEL OGAN, Director of Business Development,
Greater Oklahoma City Chamber
MICHAEL S. NEAL, President and CEO, Tulsa Regional Chamber
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
FRANK WANG, President, Oklahoma School of Science
and Mathematics
Vol. 87 — No. 15 — 5/28/2016
2:45 – 5:30 PANEL C: CRIMINAL LAW
MODERATOR: CLANCY SMITH, Presiding Judge,
Oklahoma Court of Criminal Appeals
CO-MODERATOR: ARVO MIKKANEN, (Kiowa/Comanche),
Assistant United States Attorney and tribal liaison, Western
District of Oklahoma
MARK YANCEY, Acting United States Attorney for the Western
ED SNOW, Assistant United States Attorney for the Eastern
ROBERT DON GIFFORD, (Cherokee), Assistant United States
Attorney and Tribal Liaison, Western District of Oklahoma
RANDY WESLEY, (Chickasaw), Chief, Chickasaw Nation
Lighthorse Police
JIM COX, (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, Former 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, Oklahoma State Bureau of Narcotics
ROBERT DON GIFFORD, (Cherokee), Assistant 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 JUDGES MEETING
8:30 – 12:00 PANEL C: DEFENSE
MODERATOR: JERRY GOODMAN, Judge, Oklahoma Court of
Civil Appeals
CO-MODERATOR: CHRISTOPHER C. STRAUB, Vice President,
AMAR U.S
JEFF KEEL, (Chickasaw), CNI Advantage, LLC
STEVEN BILBY, Cherokee Nation
1105
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), Artist
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-MODERATORS: 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, Former 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 HARROLD, (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 – MODERATORS: 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
BEN LORING, Representative for District 7, Oklahoma House
of Representatives
DEBORA GEE, (Navajo), Deputy Attorney General,
Chickasaw Nation
KENDAL MURPHY, Chief of Police, Wyandotte Nation
STEVEN L. BUCK, Executive Director, Oklahoma Office of
Juvenile Affairs
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
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1106
Vol. 87 — No. 15 — 5/28/2016
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Vol. 87 — No. 15 — 5/28/2016
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The Sovereignty Symposium, Inc.
1107
Court of Criminal Appeals Opinions
2016 OK CR 10
ROBERT LEE REED, Appellant, v. STATE
OF OKLAHOMA, Appellee.
No. F-2014-792. May 4, 2016
SUMMARY OPINION
HUDSON, JUDGE:
¶1 Appellant Robert Lee Reed was tried by a
jury in the District Court of Tulsa County, Case
No. CF-2013-5435, and convicted of Lewd
Molestation, in violation of 21 O.S.2011, § 1123.
The jury recommended Reed serve twenty-five
(25) years imprisonment. The Honorable William J. Musseman, District Judge, sentenced
Reed in accordance with the jury’s verdict and
further ordered Reed serve a three (3) year
term of post-imprisonment supervision.1 Reed
now appeals.
¶2 Appellant alleges three propositions of
error on appeal:
I. THE TRIAL COURT COMMITTED PLAIN
ERROR WHEN IT PERMITTED THE JURY
UNFETTERED ACCESS TO THE DVD OF
THE VICTIM’S FORENSIC INTERVIEW
(STATE’S EXHIBIT 12) DURING DELIBERATIONS WITHOUT FOLLOWING
THE PROCEDURES OUTLINED IN MARTIN V. STATE, 1987 OK CR 265, 747 P.2D
316 AND 22 O.S.2011, § 894;
II. THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING APPELLANT’S
REQUEST FOR AN INSTRUCTION
INFORMING THE JURY THAT HE
WOULD HAVE TO REGISTER AS A SEX
OFFENDER IF CONVICTED OF LEWD
MOLESTATION; and
III. APPELLANT RECEIVED INEFFECTIVE
ASSISTANCE OF COUNSEL IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS TO THE
UNITED STATES CONSTITUTION.
¶3 After thorough consideration of the entire
record before us on appeal, including the original record, transcripts, exhibits and the parties’
briefs, we find that no relief is required under
the law and evidence and Appellant’s judgment and sentence should be AFFIRMED.
1.
¶4 Appellant argues reversible plain error
occurred when the trial court permitted the
1108
jury to take the DVD recording of the victim’s
forensic interview — State’s Exhibit 12 — into
deliberations. A laptop computer to play the
DVD was also provided. Appellant contends
the jury was given “unfettered access” to
repeatedly view the victim’s forensic interview, which he argues likely led to repeated
viewing of the video and ultimately “undue
emphasis” on the victim’s version of the events.
¶5 Appellant concedes defense counsel did
not object — but actually acquiesced — to the
overall handling of State’s Exhibit 12, i.e., providing the jury with the videotape and the
means by which to view it. Thus, Appellant
has waived all but plain error review. “To be
entitled to relief under the plain error doctrine,
Appellant must prove: 1) the existence of an
actual error (i.e., deviation from a legal rule); 2)
that the error is plain or obvious; and 3) that
the error affected his substantial rights, meaning the error affected the outcome of the proceeding.” Levering v. State, 2013 OK CR 19, ¶ 6,
315 P.3d 392, 395. “If these elements are met,
this Court will correct plain error only if the
error ‘seriously affect[s] the fairness, integrity
or public reputation of the judicial proceedings’ or otherwise represents a ‘miscarriage of
justice.’” Id. (quoting Hogan v. State, 2006 OK
CR 19, ¶ 38, 139 P.3d 907, 923).
¶6 “The decision to allow a jury to take
exhibits with them to the jury room is within
the discretion of the trial court.” Duvall v. State,
1989 OK CR 61, ¶ 12, 780 P.2d 1178, 1180.
Appellant asserts, however, that the trial court
abused its discretion and relief is warranted as
the trial court’s handling of the victim’s videotaped forensic interview violated the guidelines set forth in 22 O.S.2011, § 894 and Martin
v. State, 1987 OK CR 265, 747 P.2d 316.
¶7 In Martin, the child victim “testified, and
was subject to thorough cross-examination,
first in a closed room on camera and later, in
person in front of the jury.” Martin, 1987 OK
CR 265, ¶ 9, 747 P.2d at 319. When the jury
retired to deliberate, a videotape player was set
up in the jury room and the recording of the
child’s testimony was provided to the jury for
additional viewing. Id. at ¶11, 747 P.2d at 319.
On appeal, the Martin Court found the videotape of the child victim’s “closed room” testimony at trial was “not merely an exhibit, it
[was] testimony.” Id. at ¶ 13, 747 P.2d at 319
Vol. 87 — No. 15 — 5/28/2016
(emphasis in original). The Court determined
that placing videotaped testimony in the unrestrained hands of a jury during deliberations
creates a great risk of prejudice. Id. at ¶15, 747
P.2d at 319. Thus, consistent with the provisions of 22 O.S.1981, § 894, the Court held that
before videotaped testimony can be replayed
for a jury, the trial court must call the jury back
into open court and determine the “exact
nature of the jury’s difficulty, isolate the precise
testimony which can solve it, and weigh the
probative value of the testimony against the
danger of undue emphasis.” Id. at ¶ 17, 747
P.2d at 320.
¶8 Over the course of several decisions since
Martin, this Court further clarified the proper
use of video and audiotapes by the jury during
deliberations. “A bright line emerge[d] from
these decisions: taped testimony may not go
with the jury into deliberations; taped exhibits
may.” Davis v. State, 1994 OK CR 72, ¶ 17, 885
P.2d 665, 669; See also Stouffer v. State, 2006 OK
CR 46, ¶ 131, 147 P.3d 245, 271; Cannon v. State,
1995 OK CR 45, ¶ 37, 904 P.2d 89, 104; Banks v.
State, 1991 OK CR 51, ¶ 15, 810 P.2d 1286, 1292;
Duvall v. State, 1989 OK CR 61, ¶ 11, 780 P.2d
1178, 1180. If the recording is an exhibit, it may
go with the jury into deliberations like any
other exhibit. See Stouffer, 2006 OK CR 46, ¶
131, 147 P.3d at 271; 22 O.S.2011, § 893. However, if the recording is testimony, the recording may not go with the jury into deliberations
and may only be replayed for the jury pursuant to the requirements set forth in § 894 and
Martin. See Stouffer, 2006 OK CR 46, ¶ 131, 147
P.3d at 271; Cannon, 1995 OK CR 45, ¶ 37, 904
P.2d at 104.
¶9 Thus, the clear issue herein is whether the
victim’s videotaped forensic interview is
recorded testimony or an exhibit. At first blush,
it would appear the victim’s forensic interview
is merely an exhibit and thus easily distinguishable from the recorded testimony at issue
in Martin. The victim testified at trial and thus
unlike Martin, her videotaped interview was
not testimony per se but instead was a recording of her forensic interview admitted into
evidence as an exhibit. In fact, both the trial
court and the parties perceived the victim’s
videotaped interview to be an exhibit — despite
clearly being aware of Martin. Approximately
two and half hours after the jury began deliberating, the jury sent out two separate notes
within a few minutes timespan. In the first
note, the jury requested a copy of Riesha’s preliminary hearing testimony, which had been
Vol. 87 — No. 15 — 5/28/2016
read into evidence during the State’s case in
chief. In the second note, the jury asked, “Can
we get the TV? We cannot hear the DVDs.” The
trial court and litigants conferred upon both
questions at essentially the same time.
¶10 With regard to the jury’s request for Riesha’s testimony, the implications of the Martin
case were discussed at length and in keeping
with Martin, a copy of Riesha’s testimony was
not provided to the jury. Rather, the jury’s
request was appropriately handled in open
court. Martin, 1987 OK CR 265, ¶ 17, 747 P.2d at
320. Yet, with regard to the jury’s request for a
TV to view the DVDs, the applicability of Martin to the victim’s videotaped forensic interview was never contemplated by the trial court
or the parties.
¶11 As evidenced by the circumstances presented in this matter, guidance from this Court
is clearly needed. Thus, we now definitively
resolve this issue. As acknowledged by the
parties on appeal, the victim’s forensic interview bears the hallmarks of “in-court” testimony. Specifically, the forensic interviewer (1)
ascertained the victim was able to understand
the difference between the truth and a lie and
(2) had the victim affirm — similar to the oath
a child witness takes when providing testimony in court — she would only tell the truth
during the interview.2 And, although the details
the victim provided in her recorded interview
did not fully replicate her testimony at trial, the
two accounts were for the most part consistent
with each other. We thus find the victim’s videotaped interview was the equivalent of recorded testimony. Compliance with § 894 and
the safeguards outlined in Martin was therefore required in this matter. We hold that a
videotaped forensic interview of a child possessing the principal attributes of in-court testimony should not go with the jury into deliberations nor be replayed for the jury without
meeting the requirements set forth in § 894 and
Martin.
¶12 To warrant reversal, however, there must
be error plus injury. See Grissom v. State, 2011
OK CR 3, ¶ 25, 253 P.3d 969, 979 (holding error
alone does not reverse convictions in Oklahoma, only error plus injury). No such injury
occurred herein. The victim’s testimony was
amply corroborated independently by other
evidence. Riesha Wilkinson — having heard
the victim’s screams — discovered Appellant
with his shorts “down to his ankles on the
floor” standing near the victim. Moreover, the
victim had multiple abrasions, bruising and
1109
soft tissue damage on her neck that was consistent with Appellant having choked her. Consistent with strangulation, the victim’s right eye
had petechiae. The SANE examination also
revealed the victim had “multiple red moist
abrasions” on her nose corroborating her
account that Appellant had forced his hand
over her nose and mouth to keep her from
screaming. The victim’s genital region showed
a fresh tear injury caused by a blunt object.
This injury was consistent with Appellant’s
attempt to force his penis into the victim’s buttocks while she was lying on her stomach. In
addition, all of the victim’s injuries were additionally determined to have been “less than 24
hours” old. Yet, in spite of the ample evidence
against Appellant, the jury recommended
Appellant be sentenced to the minimum term
of years permitted by law — 25 years — and
imposed no fine. See 21 O.S.2011, § 1123.
¶16 Appellant relies upon the Oklahoma
Supreme Court’s decision in Starkey v. Okla.
Dept. of Corrections, 2013 OK 43, 305 P.3d 1004,
to support his argument that registration as a
sex offender is an integral part of the punishment for a sex offense. Appellant’s reliance on
Starkey is erroneous. Starkey specifically addressed whether the Department of Corrections’
retroactive application of certain amendments to
the Sex Offenders Registration Act (SORA) violated the prohibition against Ex Post Facto laws.
Id., 2013 OK 43, ¶¶ 1-8, 18, 305 P.3d at 1008-10,
1013. Appellant does not assert any portion of
SORA has been retroactively applied to him.
Thus, the Starkey decision is neither controlling
nor persuasive.
¶13 Thus, Appellant has failed to demonstrate any injury from the alleged error sufficient to warrant relief. See Levering, 2013 OK
CR 19, ¶ 6, 315 P.3d at 395. The trial court’s
failure to comply with § 894 and Martin was
harmless. Relief for Proposition One is denied.
2.
¶14 Appellant asserts the trial court abused
its discretion when it denied Appellant’s
request to instruct the jury that if convicted he
would have to register as a sex offender. Appellant argues that being subject to the statutory
requirements of the Sex Offender Registry Act
is a “practical consequence of his sentence
upon which the jurors should have been
instructed on, as this information was necessary to provide the jurors with a complete (and
clearer) picture regarding the reality of Appellant’s sentence if they chose to convict.”
¶15 “It is settled law that trial courts have a
duty to instruct the jury on the salient features
of the law raised by the evidence with or without a request.” Hogan v. State, 2006 OK CR 19,
¶ 39, 139 P.3d 907, 923 (citing Atterberry v. State,
1986 OK CR 186, ¶ 8, 731 P.2d 420, 422). The
instructions given to the jury are reviewed by
this Court for an abuse of discretion. Harney v.
State, 2011 OK CR 10, ¶ 10, 256 P.3d. 1003, 1005.
“Absent an abuse of that discretion, this Court
will not interfere with the trial court’s judgment if the instructions as a whole, accurately
state the applicable law.” Id. “An abuse of discretion is any unreasonable or arbitrary action
taken without proper consideration of the facts
and law pertaining to the matter at issue.”
¶18 Additionally, sex offender registration is
not analogous to the “85% Rule”. The 85% rule
is a sentencing consequence that has a calculable effect on the term of imprisonment to be
imposed. Verduzco v. State, 2009 OK CR 24, ¶ 6,
217 P.3d. 625, 628. Registration pursuant to
SORA, in contrast, has no bearing on the issue
of guilt or the actual term of imprisonment or
fine imposed. Thus, sex offender registration is
not a material consequence of sentencing and is
a collateral matter outside the jury’s purview.
1110
Neloms v. State, 2012 OK CR 7, ¶ 35, 274 P.3d
161, 170.
¶17 Moreover, the requirements of SORA are
not part of the applicable range of punishment
for Appellant’s offense. Title 21 O.S.2011, § 1123
provides the applicable range of punishment
for the offense of Lewd Molestation. Nothing
in § 1123 permits a judge or a jury to impose or
for that matter delay, alter, or suspend registration as a sex offender. Nor does any provision
within SORA authorize a sentencing judge or
jury to require or preclude compliance with the
Act. 57 O.S.2011, §§ 581-590, 590.2; 57
O.S.Supp.2012, § 590.1. Rather, SORA is a regulatory scheme that is entirely separate and
distinct from the applicable punishment range.
¶19 Registration pursuant to SORA is not a
salient feature of the law in sex crime cases
upon which trial courts have a duty to instruct.
Finding no abuse of discretion occurred, Appellant’s second proposition of error is denied.
3.
¶20 Appellant asserts his right to effective
assistance of counsel was violated when
defense counsel failed to object to the introduction of the victim’s videotaped forensic interview into evidence. Appellant contends defense
Vol. 87 — No. 15 — 5/28/2016
counsel’s failure to object “[p]aved the way for
allowing the jury to have unlimited access to
this testimony during deliberations.” Thus,
Appellant maintains defense counsel’s failure
to object cannot be considered sound trial strategy as it ultimately led to a “reasonable probability” that the jury placed undue emphasis
on the victim’s version of the events.
¶21 To prevail on an ineffective assistance of
counsel claim, the defendant must show both
that counsel’s performance was deficient and
that the deficient performance prejudiced his
defense. Strickland v. Washington, 466 U.S. 668,
687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
Nowhere within Appellant’s brief does he
argue or establish that the videotape of the victim’s forensic interview — State’s Exhibit 12
— was improperly admitted into evidence.
Thus, this argument is waived. Rule 3.5(A)(5),
Rules of the Oklahoma Court of Criminal Appeals,
Title 22, Ch. 18, App. (2015); see also Arganbright
v. State, 2014 OK CR 5, ¶ 39, 328 P.3d 1212, 1221
(appellate review waived by Appellant’s failure to provide any argument or authority to
support his claim).
¶22 To the extent Appellant challenges
defense counsel’s failure to object to the jury
being provided with the victim’s videotaped
interview and the means by which to view it,
no Strickland prejudice resulted. As discussed
in Proposition I, although error may have
occurred when the jury was given unrestricted
access to the videotape, ultimately Appellant
was not prejudiced by this error. The victim’s
testimony was amply corroborated independently by other evidence. Additionally, Appellant was sentenced to the minimum term of
years permitted by law — 25 years. And,
despite the ability to impose a fine up to the
amount of $10,000.00, the jury did not assess
any fine. Thus, even assuming trial counsel’s
performance was deficient, Appellant was not
prejudiced by such deficient performance. See
Sanchez v. State, 2009 OK CR 31, ¶ 98, 223 P.3d
980, 1012 (“The Supreme Court in Strickland
defined prejudice as a reasonable probability
that, but for counsel’s unprofessional errors,
the outcome of the trial or sentencing would
have been different.”).
¶23 Appellant’s final proposition of error is
denied.
DECISION
¶24 The Judgment and Sentence of the district court is AFFIRMED. Pursuant to Rule
3.15, Rules of the Oklahoma Court of Criminal
Vol. 87 — No. 15 — 5/28/2016
Appeals, Title 22, Ch. 18, App. (2016), the MANDATE is ORDERED issued upon delivery and
filing of this decision.
AN APPEAL FROM THE DISTRICT COURT
OF TULSA COUNTY
THE HONORABLE WILLIAM J.
MUSSEMAN, DISTRICT JUDGE
APPEARANCES AT TRIAL
Richard Koller, Julie Ball, Assistant Public
Defenders, 423 S. Boulder, Suite 300, Tulsa, OK
74103, Attorneys for Defendant
Eric Loggin, Mary Walters, Assistant District
Attorneys, Tulsa County Courthouse, 500 S.
Denver, Tulsa, OK 74103, Attorneys for State
APPEARANCES ON APPEAL
Christina A. Burns, Nicole Dawn Herron,
Assistant Public Defenders, 423 S. Boulder,
Suite 300, Tulsa, OK 74103, Attorneys for
Appellant
E. Scott Pruitt, Oklahoma Attorney General,
Matthew D. Haire, Assistant Attorney General,
313 N.E. 21st Street, Oklahoma City, OK 73105,
Attorneys for Appellee
OPINION BY: HUDSON, J.
SMITH, P.J.: SPECIALLY CONCUR
LUMPKIN, V.P.J.: CONCUR
JOHNSON, J.: CONCUR
LEWIS, J.: CONCUR
SMITH, PRESIDING JUDGE, SPECIALLY
CONCURRING:
¶1 I agree that the conviction and sentence in
the case should be affirmed. I write separately
to, again, state my belief that sex offender registration amounts to punishment. Bingley v.
State, F-2013-203 (Okl. Cr. Dec. 19, 2014) (Smith,
V.P.J., concurring in part, dissenting in part). I
continue to believe that information with
regard to sex offender registration can, and
does, affect the punishment recommended by a
jury. I would hold that trial courts should instruct
jurors, where appropriate, that a defendant will
be required to register as a sex offender.
¶2 However, the failure to do so did not
affect the sentence in this case.
HUDSON, JUDGE:
1. Appellant must serve at least 85% of his sentence before parole
eligibility. 21 O.S.2011, § 13.1(18).
2. See Shelton v. State, 1990 OK CR 34, ¶ 26, 793 P.2d 866, 874 (“A
child is a competent witness under 12 O.S.1981, § 2603 if he or she has
personal knowledge of the matters at issue, and has taken an oath or
similar affirmation to tell the truth.”).
1111
CALENDAR OF EVENTS
May
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31
OBA Closed - Memorial Day
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teleconference; Contact Peggy Stockwell
405-321-9414
June
2
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1112
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OBA Closed - Independence Day
Vol. 87 — No. 15 — 5/28/2016
Court of Civil Appeals Opinions
2016 OK CIV APP 29
FLOYD MANAR and MARGIE M. MANAR,
Plaintiffs/Counter-Defendants/Appellees/
Counter-Appellants, vs. JAMES H. WESSON
and JAMIE WESSON, Defendants/CounterClaimants/Appellants/Counter-Appellees.
Case No. 113,310. April 8, 2016
APPEAL FROM THE DISTRICT COURT OF
CHOCTAW COUNTY, OKLAHOMA
HONORABLE GARY L. BROCK, JUDGE
AFFIRMED IN PART/REVERSED IN PART
Hack Welch, Hugo, Oklahoma, for Plaintiffs/
Counter-Defendants/Appellees/CounterAppellants,
Thomas J. Hadley, Hugo, Oklahoma, and
Charlie Rowland, Antlers, Oklahoma, for
Defendants/Counter-Claimants/Appellants/
Counter-Appellees.
Kenneth L. Buettner, Vice-Chief Judge and Presiding Judge:
¶1 Defendants/Counter-Claimants/Appellants/Counter-Appellees James H. and Jamie
Wesson appeal from judgment finding Plaintiffs/Counter-Defendants/Appellees/Counter-Appellants Floyd and Margie M. Manar
have an easement by prescription to use a
roadway crossing property owned by the Wessons. The Manars appeal the trial court’s finding that the road is not a public road. The clear
weight of the evidence shows the road was not
dedicated to public use nor was there prescription of the way by the public when it was a
wagon trail; we therefore affirm the trial court’s
finding on that question. The clear weight of
the evidence also shows, however, that the
road was built and used with the permission of
the Wessons’ predecessors and therefore the
trial court erred in finding the Manars have an
easement by prescription. Permissive use of a
road is a license which does not ripen into an
easement. At most the Manars had a license
which the Wessons were free to revoke. We
therefore reverse the trial court’s finding that
the Manars have an easement.
Vol. 87 — No. 15 — 5/28/2016
¶2 At issue in this case is the status of a
quarter-mile long gravel road which runs north
from Highway 109, across the Wessons’ property, and ends at the corner of a tract owned by
the Manars.1 The road was built in 1979. After a
dispute arose over the use of the road, in May
2011 the Manars filed their Petition seeking a
judgment declaring that the road had become a
public road by adverse possession and an injunction against the Wessons closing the road.
¶3 The Wessons answered and denied a road
could become public by adverse possession.
The Wessons agreed they had locked access to
the road but averred they had given the Manars
a written easement to use the road and a key to
the locked gate. The Wessons asserted their
predecessor in title had given the Manars’ predecessor permission to build the road for access because the property was then landlocked.
The Wessons denied the Manars had an easement by prescription. The Wessons asserted
they continued to allow the Manars to use the
road as a courtesy even though their property
was no longer landlocked. The Wessons asserted that after their property was burglarized
and vandalized, they decided to lock access to
the road and to give the Manars a key. The
Wessons asserted the Manars then began a
series of acts damaging the gate, trespassing on
the Wessons’ property, and threatening the
Wessons. For their counterclaims, the Wessons
sought an injunction preventing the Manars
from damaging the gate and trespassing, an
order quieting title to the road, and damages
for trespass, assault and battery, and intentional injury to property.
¶4 The Manars answered and denied the
Wessons’ tort claims. The Manars asserted that
even if they did not have an easement by prescription, there was an implied dedication of
the road, or the road had become public by the
county maintaining it, or the Manars were
entitled to an access easement.
¶5 The trial court granted a temporary
injunction in July 2011 directing that the road
was not open to the public and granting the
Manars access to the road so long as they kept
the gates locked. Following bench trial in 2013,
the trial court entered its Journal Entry of Judg-
1113
ment October 9, 2014, in which it described the
road and found that it is not a public road but
that the Manars “have an easement that comports to the existing traveled roadway which
was created and acquired by prescriptive use.”
The trial court permanently enjoined the Wessons from interfering with the Manars’ use of
the road or obstructing the road, and directed
that the Manars could not use the easement in
any manner that diminishes the Wessons’
enjoyment of their property or that causes
damage to the Wessons’ property. From this
judgment, both parties appeal.
¶6 The Wessons argue that the trial court
erred in finding the Manars had an easement
by prescription. The Manars argue that the trial
court erred in finding that the road was not a
public road and that the trial court’s order that
they may not use the easement in any manner
which diminishes the Wessons’ enjoyment or
damages the Wessons’ real property was vague
and should be clarified or omitted from the
judgment.2 Actions to quiet title or determine
an easement are equitable proceedings and
therefore we will affirm the judgment unless it
is against the clear weight of the evidence or
contrary to law. Irion v. Nelson, 1952 OK 331,
249 P.2d 107, 207 Okla. 243.
¶7 The evidence at trial indicated that an old
wagon trail had existed along the path of the
disputed roadway since the 1940s and that
some people used it to get to an area, apparently now owned by the Manars, for hunting,
fishing, gathering pecans, and picnicking. The
witnesses indicated the wagon trail was gated.
By 1977, Ronnie Holiday owned the property
now owned by the Manars. Otis Lane owned
the SW/4 of the SW/4 and Don Kirkland
owned the SE/4 of the SW/4, the relevant
tracts now owned by the Wessons. Holliday
testified that he talked to Lane about opening a
road in 1977 and Lane said he would give him
fifteen feet if Holliday would “build him a
good fence.” Holliday testified they shook
hands on the deal and Holliday built the fence.
Holliday testified that in 1979 he spoke to Kirkland and told him the road was not wide
enough. Holliday testified that Kirkland also
offered to give him fifteen feet if he would
build a fence like he had built for Lane. Holliday testified the County built the gravel road
at his request. Kirkland testified that Holliday
did not pay him for the fifteen feet and that he
gave his permission for the road as a good
neighbor gesture.
1114
¶8 The evidence included a resolution in
which the County disclaimed any interest in
the road and stated that the road had never
been on the County or State road inventory
and had never been dedicated to public use.
While the weight of the evidence was that the
wagon trail had been gated, the gravel road
was not gated until the Wessons installed a
gate in 2011. The Wessons purchased Lane’s
property in 1988 and Kirkland’s property in
1992. James Wesson testified the abstracts for
both properties did not identify a road easement and that before he bought each tract, the
sellers told him the road was used permissively for the purpose of accessing landlocked
property. Floyd Manar testified that the road
was the only current way to access the rental
house on his property, but that he could build
a road further north on his property to access
the rental house. Manar testified that he lives
on property adjacent to the north.
¶9 “An easement is the right of one person to
go onto the land of another and make a limited
use thereof. Easements may be expressly created by deed or come about by necessity or
prescriptive use or . . . may be implied into a
deed.” Story v. Hefner, 1975 OK 115, 540 P.2d
562, 566. In this case it is undisputed there was
no easement by deed until the Wessons granted
then terminated a written easement to the
Manars in 2011. Nor does the record support an
easement by necessity or implication because
there was no evidence of prior unity of title.3
¶10 An easement by prescription is an easement obtained by adverse possession for the
prescriptive period, which in Oklahoma is fifteen years. Permissive use of a way over the
land of another will not ripen into an easement,
regardless of the number of years of use. Johnson v. Whelan, 1935 OK 312, 42 P.2d 882, 171
Okla. 243. The Manars contend the wagon trail
was a public road by prescription before Lane
and Kirkland offered to allow Holliday to use
part of their properties to build the road.
To establish an easement for roadway by
prescription, the land in question must
have been used by the public with the
actual or implied knowledge of the landowners, adversely under claim or color of
right, and not merely by the owners’ permission, and continuously and uninterruptedly, for the period required to bar an
action for the recovery of possession of
land or otherwise prescribed by statute;
when these conditions are present, the
Vol. 87 — No. 15 — 5/28/2016
easement for roadway exists by prescription, otherwise not.
Hurst v. Stowers, 1965 OK 30, 399 P.2d 477.
¶11 The clear weight of the evidence in this
case shows that the road at issue was created
by permission. Although the testimony was
disputed as to the number of people who used
the wagon trail and whether they had permission to do so, the witnesses agreed that generally a person goes beyond a gate because he
has obtained permission to do so. And the
weight of the evidence was that during the
time that the wagon trail existed, the owners
allowed others to go through the gates as part
of being good neighbors. The use of gates
shows an owner’s intent to exclude the public
and destroys any public prescription of a way.
Irion, supra, 249 P.2d at 109, quoting 25 Am.Jur.
34-348. And, where use of a way has been permitted as part of a good neighbor policy, there
must be evidence that the owners had notice
people were using the property adversely.
Irion, supra, at 110, quoting Friend v. Holcombe,
1945 OK 267, 162 P.2d 1008, 196 Okla. 111. We
find no error in the trial court’s decision that
the road was not public.
¶12 We next consider the trial court’s finding
that the Manars had acquired a private easement by prescription. Permissive use is fatal to
a claim for a prescriptive easement. As noted
above, permissive use of a way over the land of
another will never ripen into an easement, no
matter how long it is indulged. Whalen, supra.
In this case, the evidence was undisputed that
the road was built based on express permission
from Lane and Kirkland. James Wesson testified he believed the road was permissive when
he bought his properties and he continued to
allow the Manars to use the property until
2011. Accordingly, the trial court erred in finding that an easement arose by prescription in
this case.
orally agree to each use part of their properties
to create a shared driveway or a shared staircase. In Whelan, supra, two neighbors agreed to
build a driveway along the line separating
their properties, roughly half on either side,
and to share the cost. The driveway went from
the street to small buildings behind their houses. Each property was later sold to others. At
some point, one of the successor owners sought
to build a fence along the lot line and expand
the driveway on her side into her own yard.
The other owner sought an injunction against
the interference with the driveway, which the
trial court granted. On appeal, the defendant
urged that the plaintiff had only a license to
use the part of the driveway on the plaintiff’s
property because it was created by permission.
The Oklahoma Supreme Court agreed that a
permissive use of a road over the land of
another is a license which does not ripen into
an easement. Nevertheless, the court held that
after the driveway was built, each owner was
asserting an adverse interest in the portion of
the driveway on the other party’s land and
therefore created a presumption of an easement after fifteen years. 42 P.2d at 883. The key
fact in Whelan is that the adjacent owners each
agreed to create the way and used it continuously for the prescriptive period. Indeed, the
Oklahoma Supreme Court later referred to
Whelan as approving the “mutual use” rule,
which the court described as a narrow rule
applying only where two owners of adjacent
property construct a driveway and use it for
the prescriptive period, and in such case the
two adjacent owners have an easement on the
land of the other for the continuing use of the
driveway. Friend, supra, 162 P.2d at 1011.
¶13 Because the weight of the evidence
shows that Lane and Kirkland affirmatively
granted the use of fifteen feet of their properties for the road, we consider whether there
was an oral grant of an easement in this case. In
Oklahoma, it is settled that an easement is an
interest in land and therefore must be granted
in writing if not obtained by prescription. Catteral v. Pulis, 1929 OK 63, 278 P. 292, 137 Okla.
86; 15 O.S.2011 §136.
¶15 The facts of this case are plainly distinguishable. Here, adjacent owners, Lane and
Kirkland, agreed to allow a third party to build
a road over their properties for his benefit.
There is no evidence that Lane and Kirkland
used the road adversely to each other or ever
claimed an easement in the road. In Friend, the
court noted no case had applied the mutual use
rule to a roadway consecutively crossing the
land of different owners. We are constrained to
follow the Oklahoma Supreme Court’s holdings and find that on the facts presented here,
despite the apparent performance of an oral
grant of an easement, the Manars at best have
a license.4
¶14 An exception to the writing requirement
has been found only where adjacent neighbors
¶16 The facts in Friend are similar to the facts
here. In that case, a road across the defendant’s
Vol. 87 — No. 15 — 5/28/2016
1115
property had been in use for over 40 years
when the defendant installed a fence across the
road. The trial court there agreed with the
plaintiff that the road had been adversely possessed by the public. The Oklahoma Supreme
Court found that the use was permissive and
reiterated that permissive use can never ripen
into an easement. The court reversed the finding of an easement. Id., 162 P.2d at 1011.
¶17 The clear weight of the evidence in this
case shows that the road was built and used
with permission. Accordingly, the use of the
road was a license which could not ripen into
an easement, regardless of the length of time it
was in use. We reverse the trial court’s finding
of an easement by prescription on the facts
presented here.
AFFIRMED IN PART/REVERSED IN PART.
MITCHELL, J., and GOREE, J., concur.
Kenneth L. Buettner, Vice-Chief Judge and Presiding Judge:
1. The road bisects the S/2 of the SW/4 of Sec. 18-7S-15E. The Wessons own all of the SW/4 except for the N/2 of the NE/4 of the SW/4
and the SW/4 of the NE/4 of the SW/4, which are owned by the
Manars. (The parties own additional contiguous properties as well).
2. In their Reply Brief the Manars agreed they had cited no authority for their argument that the enjoyment provision was vague and the
Manars averred they had “no objection to said proposition being dismissed.” Because we reverse the finding of an easement, we need not
consider this argument, but we recognize that generally the servient
tenant may install a gate across an access easement, so long as the gate
does not unreasonably burden the dominant tenant’s use of the easement. Tidwell v. Bezner, 2010 OK CIV APP 143, 245 P.3d 620.
3. “Generally, to show the existence of a common law easement of
necessity, a plaintiff must prove the following elements: (1) unity of
title; (2) conveyance of part of the land previously held under unity of
title; and (3) a resulting necessity for access to the property at the time
of its severance.” Johnson v. Suttles, 2009 OK CIV APP 89, ¶9, 227 P.3d
664. An easement by implication adds to these elements the requirement that the easement was in actual use at the time of the conveyance
separating the previously unified tract. Id. at ¶14.
4. We recognize that some states have found that an oral agreement
for the use of land may be taken out of the statute of frauds by partial
performance. See Royer v. Gailey, 449 P.2d 853, 855, 252 Or. 369 (1969);
Birdsey v. Kosienski, 101 A.2d 274, 278, 140 Conn. 403 (1953). Most state
cases on this question involve the mutual use rule to some degree.
2016 OK CIV APP 30
BRENDA G. WEAVER, as Power of Attorney
of VIRGINIA QUAY WEAVER, Plaintiff/
Appellee, vs. JOHN DOE, individually, and
JOHN DOE, as Agent of PEAK MEDICAL
OKLAHOMA NO. 3, INC., d/b/a FOREST
HILLS CARE AND REHABILITATION
CENTER, Defendants/Appellants.
Case No. 113,532. April 11, 2016
TULSA COUNTY, OKLAHOMA
1116
HONORABLE LINDA G. MORRISSEY,
TRIAL JUDGE
REVERSED AND REMANDED WITH
DIRECTIONS
Mark S. Stanley, STANLEY & MYERS, Tulsa,
Oklahoma, for Plaintiff/Appellee
Margaret M. Clarke, John T. Richer, Kristen P.
Evans, HALL, ESTILL, HARDWICK, GABLE,
GOLDEN & NELSON, P.C., Tulsa, Oklahoma,
for Defendants/Appellants
JANE P. WISEMAN, PRESIDING JUDGE:
¶1 Peak Medical Oklahoma No. 3, Inc.,
d/b/a Forest Hills Care and Rehabilitation
Center, appeals a trial court order denying its
motion to dismiss, or in the alternative, motion
to compel arbitration and stay the judicial proceedings in this negligence action. After reviewing the record on appeal and applicable law,
we reverse and remand with directions.
FACTS AND PROCEDURAL
BACKGROUND
¶2 Brenda G. Weaver, as power of attorney
for Virginia Quay Weaver, filed a petition on
June 18, 2013, against John Doe and John Doe
as agent of Forest Hills, alleging caretaker
neglect causing injury to Virginia while she
was a resident at Forest Hills. Forest Hills filed
an answer on August 8, 2014, admitting some
facts stated in the petition, denying others, and
claiming insufficient knowledge of the remaining facts. Forest Hills also asserted numerous
affirmative defenses.
¶3 Forest Hills filed a motion to dismiss, or in
the alternative, a motion to compel arbitration
and stay the case. Forest Hills states that Virginia was admitted to the facility on two occasions — on February 2, 2012, and again on
October 5, 2012. On each of these occasions, in
addition to an “Admission Agreement,” Brenda signed on behalf of Virginia an “Oklahoma
Long-Term Care Arbitration Agreement” pursuant to which she agreed to submit all disputes to arbitration. According to Forest Hills,
these Arbitration Agreements are identical,
voluntary, not a pre-condition of admission to
the facility, and contained a 30-day revocation
period. Forest Hills further alleges, “The Agreements require the claimant to make a written
demand for arbitration in writing and to serve
the demand on the other party via certified
mail, return receipt requested.” Forest Hills
claims Brenda filed this lawsuit instead of
Vol. 87 — No. 15 — 5/28/2016
making a written demand and that the lawsuit
should therefore be dismissed.
¶4 In her response, Brenda stated her opposition to the motion to dismiss/compel and
requested an evidentiary hearing, or in the
alternative, a motion to continue. She asserted
the Federal Arbitration Act does not apply
because “[t]he issue of the enforceability of
arbitration agreements in the nursing home
context has already been litigated and decided
by the Oklahoma Supreme Court in Bruner v.
Timberlane Manor Limited Partnership, 2006 OK
90 [155 P.3d 16].” Brenda contends this arbitration agreement is unenforceable pursuant to
the holding in Bruner.
¶5 In its reply, Forest Hills cites the United
States Supreme Court case of Marmet Health
Care Center, Inc. v. Brown, ___ U.S.___, 132 S. Ct.
1201, 182 L. Ed. 2d 42 (2012), involving arbitration agreements in states with laws prohibiting
arbitration agreements in the context of nursing
homes, a case in which the Court found the FAA
pre-empts the state anti-arbitration statutes.
¶6 On December 3, 2014, the trial court in a
minute order without oral argument denied
Forest Hills’ motion to dismiss/compel. Forest
Hills filed a motion to reconsider the denial of
the motion to compel, or to set an evidentiary
hearing. On December 31, 2014, Forest Hills
filed this appeal. Forest Hills filed an amended
petition in error on January 26, 2015, attaching
an order filed January 22, 2015, denying the
motion to dismiss/motion to compel. The trial
court later granted Forest Hills’ motion to stay
the proceedings pending appeal.1
¶7 Forest Hills appeals.
STANDARD OF REVIEW
¶8 “We review an order granting or denying
a motion to compel arbitration de novo, the
same standard of review employed by the trial
court.” Thompson v. Bar-S Foods Co., 2007 OK
75, ¶ 9, 174 P.3d 567. “Arbitration should be
compelled unless it may be said with positive
assurance that the arbitration clause is not susceptible of an interpretation that covers the
asserted dispute.” Id.
ANALYSIS
¶9 The Federal Arbitration Act (FAA)
“applies to contracts affecting interstate commerce. 9 U.S.C. § 1 (2000).” Rogers v. Dell Computer Corp., 2005 OK 51, ¶ 11, 138 P.3d 826. “The
FAA reflects the fundamental principle that
Vol. 87 — No. 15 — 5/28/2016
arbitration is a matter of contract.” Rent-ACenter, W., Inc. v. Jackson, 561 U.S. 63, 67, 130 S.
Ct. 2772, 2776, 177 L. Ed. 2d 403 (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. (quoting Doctor’s Assocs., Inc. v. Casarotto, 517 U.S. 681,
687, 116 S. Ct. 1652, 134 L. Ed. 2d 902 (1996)).
¶10 The FAA, at 9 U.S.C. §§ 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, shall be
valid, irrevocable, and enforceable, save upon
such grounds as exist at law or in equity for the
revocation of any contract.
(Emphasis added.)
¶11 The Arbitration Agreement (the Agreement) signed by Brenda on October 5, 2012,
provides:
B. AGREEMENT TO ARBITRATE “DISPUTES”: Any and all claims or controversies arising out of or in any way relating to
this Agreement, the Admission Agreement
or any of the resident’s stays at this Facility,
or any facility operated by any subsidiary
of Sun Healthcare Group, Inc., whether or
not related to medical malpractice, including but not limited to disputes regarding
the making, execution, validity, enforceability, voidability, unconscionability, severability, scope, interpretation, preemption,
waiver, or any other defense to enforceability of this Agreement or the Admission
Agreement, whether arising out of State or
Federal law, whether existing now or arising in the future, whether for statutory,
compensatory, or punitive damages and
whether sounding in breach of contract,
tort or breach of statutory duties (including, without limitation except as indicated
in this Agreement or any other agreement
signed between these parties, any claim
based on Residents’ Rights or a claim for
unpaid facility charges), irrespective of the
1117
basis for the duty or of the legal theories
upon which the claim is asserted, shall be
submitted to binding arbitration.
Section C of the Agreement provides, in part:
4. FAA: The parties hereby expressly agree
that this Agreement, the Admission Agreement and the Resident’s stay at the Facility
substantially involve interstate commerce,
and stipulate that the Federal Arbitration
Act (“FAA”) shall apply to this Agreement,
and shall preempt any inconsistent State
law and shall not be reverse preempted by
the McCarran-Ferguson Act; United States
Code Title 15, Chapter 20, or other law.
The Agreement states that it may be cancelled
by written notice within 30 days of the date of
admission and further provides, “If you do not
accept this Agreement, you will still be allowed
to live in, and receive services in, this Facility.”
On the page preceding the signature page, the
Agreement states:
BY SIGNING THIS CONTRACT YOU ARE
AGREEING TO HAVE ANY DISPUTE
DECIDED BY NEUTRAL ARBITRATION
AND YOU ARE GIVING UP YOUR
RIGHT TO A JURY OR COURT TRIAL.
NOTE THAT PROCEEDINGS PURSUANT TO 42 U.S.C. §§ 1396r(c)(2), (f)(3)
and 42 C.F.R. § 431.245 WILL NOT BE
SUBJECT TO ARBITRATION IF SO PROVIDED BY STATE LAW.
¶12 The Oklahoma Nursing Home Care Act
(NHCA) directly addresses such agreements in
nursing home contracts. Title 63 O.S.2011 §
1-1939 provides, in part:
A. The owner and licensee are liable to a
resident for any intentional or negligent act
or omission of their agents or employees
which injures the resident. In addition, any
state employee that aids, abets, assists, or
conspires with an owner or licensee to perform an act that causes injury to a resident
shall be individually liable.
B. A resident may maintain an action under
the Nursing Home Care Act for any other
type of relief, including injunctive and
declaratory relief, permitted by law.
C. Any damages recoverable under this
section, including minimum damages as
provided by this section, may be recovered
in any action which a court may authorize
to be brought as a class action. The remedies
1118
provided in this section, are in addition to
and cumulative with any other legal remedies available to a resident. Exhaustion of
any available administrative remedies shall
not be required prior to commencement of
suit hereunder.
D. Any waiver by a resident or the legal representative of the resident of the right to commence an action under this section, whether
oral or in writing, shall be null and void, and
without legal force or effect.
E. Any party to an action brought under this
section shall be entitled to a trial by jury and
any waiver of the right to a trial by a jury,
whether oral or in writing, prior to the commencement of an action, shall be null and void,
and without legal force or effect.
F. A licensee or its agents or employees
shall not transfer, discharge, evict, harass,
dismiss or retaliate against a resident, a
resident’s guardian or an employee or
agent who makes a report, brings, or testifies in, an action under this section, or files
a complaint because of a report, testimony
or complaint.
(Emphasis added.)
¶13 The issue of an arbitration agreement in
the context of a nursing home admission was
addressed in Bruner v. Timberlane Manor Limited
Partnership, 2006 OK 90, 155 P.3d 16, in which
the Oklahoma Supreme Court held that the
Oklahoma NHCA controlled over the Oklahoma Uniform Arbitration Act and the FAA did
not apply. The Court found the FAA inapplicable for these reasons:
First, the arbitration agreement calls for
Oklahoma law to govern. Second, Congress regulates nursing homes through its
spending power rather than its power over
interstate commerce. Third, Congress, in its
nursing home regulations, left the states to
devise the appropriate administrative or
judicial review of nursing home residents’
claims against nursing homes. Fourth, the
evidence in this case is insufficient to connect the nursing home admission contract
with interstate commerce under extant
jurisprudence from the United States Supreme Court.
Id. ¶ 47. The Court further determined “Oklahoma’s Nursing Home Care Act governs over
Oklahoma’s Uniform Arbitration Act in this
Vol. 87 — No. 15 — 5/28/2016
case.” Id. The Court held “the district court did
not err in denying the motion to compel arbitration and stay proceeding.” Id.
¶14 In Bruner, the nursing home resident’s
daughter, as the resident’s attorney in fact,
signed a contract for admission to the nursing
home which included an arbitration agreement. The Court noted:
The state counterpart to § 2 of the FAA is §
1857(A) of the OUAA. It provides that arbitration agreements shall be valid, enforceable and irrevocable except upon a ground
that exists at law or in equity for the revocation of a contract. 12 O.S.Supp.2005, §
1857(A). This section is a clear expression
of Oklahoma’s policy favoring arbitration
agreements. See, Voss v. City of Oklahoma
City, 1980 OK 148, 618 P.2d 925; Rollings v.
Thermodyne Indust., Inc., 1996 OK 6, 910
P.2d 1030.
On the other hand, § 1-1939 of the Nursing
Home Care Act conflicts with the command of § 1857 of the OUAA. It provides
that any waiver of the right to commence
an action against the nursing home owner
or licensee for any intentional or negligent
act or omission shall be null and void and
without legal effect. 63 O.S.2001, § 1-1939.
It is a clear rejection of arbitration agreements between nursing homes and their
residents.
Id. ¶¶ 23-24.
¶15 The arbitration sections in Bruner provided:
NOTICE: BY SIGNING THIS AGREEMENT
THE RESIDENT AGREES TO HAVE ANY
RESIDENT/GLC [Grace Living Center]
DISPUTE DECIDED BY NEUTRAL BINDING ARBITRATION AND WAIVES ANY
RIGHT TO TRIAL IN A COURT OF LAW
OR EQUITY; PROVIDED; HOWEVER,
THAT THE PARTIES MAY RESOLVE ANY
RESIDENT/GLC DISPUTE BY NEGOTIATION BY AND BETWEEN THEMSELVES
OR BY USE OF AN AGREED UPON
THIRD PARTY MEDIATOR.
Id. at n. 1.
¶16 The nursing home in Bruner argued “the
FAA preempts and displaces the state’s antiarbitration statute in the Oklahoma Nursing
Home Care Act at 63 O.S.2001, § 1-1939(D) and
(E).” Id. ¶ 5. The Court explained that § 1-1939
Vol. 87 — No. 15 — 5/28/2016
“is a clear rejection of arbitration agreements
between nursing homes and their residents” Id.
¶ 24. The Court found that “the specific statute
in the Nursing Home Care Act addressing the
right to commence an action and to have a jury
trial must govern over the more general statute
favoring arbitration.” Id. ¶ 25.
¶17 The Court noted that the arbitration
agreement at issue chose Oklahoma law as the
governing law:
The record before us indicates that the parties selected Oklahoma law to govern the
arbitration provisions. The appellate record
contains only the two-page dispute resolution part of the nursing home admission
contract and the signature page. The dispute resolution part (arbitration agreement) does not mention the FAA, although
it acknowledges “that Oklahoma law, as
well as decisions of the United States
Supreme Court, favor the enforcement of
valid arbitration provisions.” It does, however, in at least eight different places, provide that arbitration shall be governed by
Oklahoma law.
Id. ¶ 40.
¶18 On the question of whether the transaction involved interstate commerce bringing it
within the purview of the FAA, the Court stated, “The nursing home admission contract in
this case involved a profoundly local transaction — in state nursing home care provided to
an Oklahoma individual by an Oklahoma
entity licensed under Oklahoma law.” Id. ¶ 43.
The Court noted that there is a three-prong test
to determine whether an arbitration agreement
is governed by the interstate commerce provision of the FAA:
The FAA reaches arbitration agreements in
contracts evidencing a transaction that is 1)
economic activity, 2) which in aggregate is a
general practice subject to control under the
Commerce Clause, and 3) which in aggregate has a substantial impact on interstate
commerce. We acknowledge that nursing
home care for a fee is economic activity.
Id. The Court concluded the transaction in
Bruner failed the last two prongs. Id.
¶19 The Court further found:
Even if the nursing home’s admission contract were within the broad reach of the
Commerce Clause, the FAA’s mandate has
1119
been overridden by a contrary congressional command. See, Shearson/American Express, Inc. v. McMahon, 482 U.S. at 226-227,
107 S.Ct. at 2337. Consistent with the federal statute permitting the states to devise
a fair mechanism for hearing appeals on
transfers and discharges of residents from
nursing facilities, 42 U.S.C. § 1396r(c)(2)
and (f)(3), the appeal procedure regulations provide that a resident has a right to
agency hearings and judicial review as
allowed by state law. 42 C.F.R. § 431.245.
Under state law, the arbitration agreement
is unenforceable. This result is consistent
with the federal Medicare/Medicaid regulatory agency’s finding of conflict between
the Medicaid regulations and binding arbitration, implying that arbitration proceedings are antithetical to the federal goal of
protecting dependent nursing home patients from abuse and neglect. The district
court did not err when it found § 1-1939(D)
and (E) apply to this arbitration agreement
and render it unenforceable.
Id. ¶ 46.
¶20 Brenda asserts the Bruner holding controls in this case. Forest Hills disagrees, maintaining this case is controlled by Marmet Health
Care Center, Inc. v. Brown, ___ U.S. ___, 132 S. Ct.
1201, 182 L. Ed. 2d 42 (2012). In Marmet, the
United States Supreme Court held that a West
Virginia statute prohibiting “predispute agreements to arbitrate personal-injury or wrongful-death claims against nursing homes is a
categorical rule prohibiting arbitration of a
particular type of a claim, and that rule is contrary to the terms and coverage of the FAA.” Id.
at 1204.
¶21 The Marmet decision involved three negligence lawsuits brought in West Virginia in
which a family member signed an agreement
with a nursing home on behalf of a patient. Id.
at 1202. In two of the cases, the agreements
were identical and “included a clause requiring the parties to arbitrate all disputes, other
than claims to collect late payments owed by
the patient.” Id. at 1203. The contracts in these
cases also “included a provision holding the
party filing the arbitration responsible for paying a filing fee in accordance with the Rules of
the American Arbitration Association fee
schedules.” Id. The third agreement included
an arbitration clause, to which there were no
exceptions, and made no mention of filing fees.
Id. In each case, when the patient died, a family
1120
member brought suit in state court alleging negligent care by the nursing home. Id. According to
the West Virginia Court in Brown ex rel. Brown v.
Genesis Healthcare Corp., 724 S.E.2d 250, 267
(2011) cert. granted, judgment vacated sub nom.
Marmet Health Care Center, Inc. v. Brown, 132 S.
Ct. 1201, 182 L. Ed. 2d 42 (2012), this was the
issue before the West Virginia Court:
Is West Virginia Code § 16–5C–15(c), which
provides in pertinent part that “[a]ny waiver by a resident or his or her representative
of the right to commence an action under
this section, whether oral or in writing,
shall be null and void as contrary to public
policy,” preempted by the Federal Arbitration Act, 9 U.S.C. § 1 et seq., when a nursing
home resident’s representative has executed an arbitration agreement as part of the
nursing home’s admission documents and
the arbitration agreement contains the following terms and conditions:
a. the arbitration agreement applies to and
binds both parties by its terms;
b. the arbitration agreement contains language in upper case typescript stating as
follows: “THE PARTIES UNDERSTAND
AND AGREE THAT BY ENTERING THIS
ARBITRATION AGREEMENT THEY ARE
GIVING UP AND WAIVING THEIR CONSTITUTIONAL RIGHT TO HAVE ANY
CLAIM DECIDED IN [A] COURT OF LAW
BEFORE A JUDGE AND A JURY.”; and
c. the resident’s representative is specifically advised that she has the right to seek
legal counsel concerning the arbitration
agreement, the execution of the arbitration
agreement is not a pre-condition to admission to the nursing home facility, and the
arbitration agreement may be rescinded by
the resident through written notice to the
facility within thirty (30) days of signing
the arbitration agreement.
The statutory language in Oklahoma’s 63
O.S.2011 § 1-1939(D) is substantially the same
as the law cited by the West Virginia Court.
¶22 The West Virginia Supreme Court of
Appeals held in a decision involving all three
cases “that ‘as a matter of public policy under
West Virginia law, an arbitration clause in a
nursing home admission agreement adopted
prior to an occurrence of negligence that results
in a personal injury or wrongful death, shall
not be enforced to compel arbitration of a dis-
Vol. 87 — No. 15 — 5/28/2016
pute concerning the negligence.’” Marmet, 132
S. Ct. at 1203. According to the U.S. Supreme
Court, the West Virginia Court concluded Congress did not intend for the FAA to apply “to
personal injury or wrongful death suits that
only collaterally derive from a written agreement that evidences a transaction affecting
interstate commerce.” Id. The West Virginia
Court held “that the FAA does not pre-empt
the state public policy against predispute arbitration agreements that apply to claims of personal injury or wrongful death against nursing
homes.” Id.
¶23 The Supreme Court disagreed with the
West Virginia Court’s conclusion:
The West Virginia court’s interpretation of
the FAA was both incorrect and inconsistent with clear instruction in the precedents
of this Court. The FAA provides that a
“written provision in . . . a contract evidencing a transaction involving commerce
to settle by arbitration a controversy thereafter arising out of such contract or transaction . . . shall be valid, irrevocable, and
enforceable, save upon such grounds as
exist at law or in equity for the revocation
of any contract.” 9 U.S.C. § 2. The statute’s
text includes no exception for personalinjury or wrongful-death claims. It “requires courts to enforce the bargain of the
parties to arbitrate.” Dean Witter Rey-nolds
Inc. v. Byrd, 470 U.S. 213, 217, 105 S.Ct.
1238, 84 L.Ed.2d 158 (1985). It “reflects an
emphatic federal policy in favor of arbitral
dispute resolution.” KPMG LLP v. Cocchi,
565 U.S. --------, --------, 132 S.Ct. 23, 25, 181
L.Ed.2d 323 (2011) (per curiam) (quoting
Mitsubishi Motors Corp. v. Soler ChryslerPlymouth, Inc., 473 U.S. 614, 631, 105 S.Ct.
3346, 87 L.Ed.2d 444 (1985); internal quotation marks omitted).
As this Court reaffirmed last Term, “[w]
hen state law prohibits outright the arbitration of a particular type of claim, the analysis is straightforward: The conflicting rule
is displaced by the FAA.” AT & T Mobility
LLC v. Concepcion, 563 U.S. --------, --------,
131 S.Ct. 1740, 1747, 179 L.Ed.2d 742 (2011).
That rule resolves these cases. West Virginia’s prohibition against predispute
agreements to arbitrate personal-injury or
wrongful-death claims against nursing
homes is a categorical rule prohibiting
arbitration of a particular type of claim,
and that rule is contrary to the terms and
Vol. 87 — No. 15 — 5/28/2016
coverage of the FAA. See ibid. See also, e.g.,
Preston v. Ferrer, 552 U.S. 346, 356, 128 S.Ct.
978, 169 L.Ed.2d 917 (2008) (FAA pre-empts
state law granting state commissioner
exclusive jurisdiction to decide issue the
parties agreed to arbitrate); Mastrobuono v.
Shearson Lehman Hutton, Inc., 514 U.S. 52,
56, 115 S.Ct. 1212, 131 L.Ed.2d 76 (1995)
(FAA pre-empts state law requiring judicial
resolution of claims involving punitive
damages); Perry v. Thomas, 482 U.S. 483,
491, 107 S.Ct. 2520, 96 L.Ed.2d 426 (1987)
(FAA pre-empts state law requirement that
litigants be provided a judicial forum for
wage disputes); Southland Corp. v. Keating,
465 U.S. 1, 10, 104 S.Ct. 852, 79 L.Ed.2d 1
(1984) (FAA pre-empts state financial investment statute’s prohibition of arbitration of claims brought under that statute).
Id. at 1203-04 (emphasis added). The Supreme
Court remanded the case for the West Virginia
Court to “consider whether, absent that general public policy, the arbitration clauses in [two
of the three cases] are unenforceable under
state common law principles that are not specific to arbitration and pre-empted by the
FAA.” Id. at 1204.
¶24 Forest Hills argues that the trial court’s
erroneous denial of its motion to compel arbitration requires reversal. It asserts Brenda
agreed on Virginia’s behalf to arbitrate any
claims she may have against Forest Hills and
that she further agreed that the parties’ agreements substantially involve interstate commerce and that the FAA applied. It further
claims Brenda freely entered into the Agreement, although she was not required to do so
to admit Virginia to the nursing home, and that
Brenda “clearly intended that her mother
receive the benefits of the Arbitration Agreements when she signed them; she is thus
bound.” Forest Hills asserts that the FAA governs this dispute and the decision in Bruner is
contrary to the Supreme Court’s holding in
Marmet.
¶25 Marmet makes clear that the categorical
prohibition against arbitration agreements like
the one here under the Oklahoma NHCA and
contained in § 1-1939 is displaced by the FAA.
We must conclude that § 1-1939, and the holding of Bruner that this provision is not preempted by the FAA, are inconsistent with
Marmet and cannot be applied in this case.
1121
¶26 Further, in Bruner, the Court found that
the agreement under consideration clearly stated that Oklahoma law applied to the agreement. That is not the case here. The Agreement
between Brenda and Forest Hills explicitly
states the FAA applies and pre-empts any
inconsistent state law. The Agreement also provides that the arbitrator must apply the NAF’s
Code of Procedure, the Federal Rules of Evidence and state substantive law.
¶27 The basis for the trial court’s denial of
the motion to compel arbitration is not stated.
Based on Marmet’s holding and the parties’
Agreement that the FAA applies, § 1-1939 cannot constitute the sole basis for denying arbitration, so this matter is governed by the FAA
if no other circumstance under state law exists
to invalidate the arbitration provision.
¶28 As a ground for denying arbitration,
Brenda argues both to the trial court and on
appeal that the Agreement is overreaching,
unconscionable, and unenforceable. The Agreement itself reserves these issues for arbitration,
and there is clear precedent that when the
validity and enforceability of the entire agreement are contested, these questions are to be
resolved by the arbitrator, not by the court.
¶29 The United States Supreme Court in
Rent-A-Center, West, Inc. v. Jackson, 561 U.S. 63,
130 S. Ct. 2772, 177 L. Ed. 2d 403 (2010), confronted facts similar to our case, albeit in the
context of an employment discrimination case
rather than nursing home care. Rent-A-Center
addressed whether the court or the arbitrator
had the authority to determine Jackson’s claim
that the separate arbitration agreement he
signed as a condition of his employment was
unconscionable and therefore unenforceable
under Nevada law. The Court concluded that
because Jackson challenged the validity of the
entire arbitration agreement, not just its provision delegating to the arbitrator the “gateway”
question of enforceability, the arbitrator had
the exclusive authority to decide the unconscionability issue.2 Id. at 72, 130 S. Ct. at 2779. If
Jackson had challenged as unconscionable the
delegation provision specifically, the issue
would fall to the court for resolution. Otherwise, the challenge to the arbitration agreement as a whole falls to the arbitrator. Id.
Under similar circumstances in our case, we do
not see how we might arrive at a different
result. Brenda’s challenge to the entire Agreement to arbitrate makes this a question for the
arbitrator, not for the court.
1122
CONCLUSION
¶30 The trial court’s order denying the
motion to compel arbitration is reversed, and
the case remanded with directions to grant the
motion to compel arbitration.
¶31 REVERSED AND REMANDED WITH
DIRECTIONS.
GOODMAN, C.J., and FISCHER, J., concur.
JANE P. WISEMAN, PRESIDING JUDGE:
1. Although Forest Hills filed a motion to reconsider and it does
not appear the trial court ruled on the motion, Forest Hills later asked
the trial court for a stay of proceedings, which the trial court granted.
Given the trial court’s stay of proceedings until disposition of the
appeal, we will address the issues raised on appeal even though the
trial court has not ruled on the motion to reconsider.
2. The Court, referring to several of its earlier cases, stated that “the
arbitration provisions sought to be enforced in those cases were contained in contracts unrelated to arbitration — [generally contracts for
services]. . . . In this case, the underlying contract is itself an arbitration
agreement. But that makes no difference.” Rent-A-Center, West, Inc. v.
Jackson, 561 U.S. 63, 72, 130 S. Ct. 2772, 2779, 177 L. Ed. 2d 403 (2010).
2016 OK CIV APP 31
IN RE THE MARRIAGE OF KING
ANDREA NICOLE KING, Petitioner/
Appellee, and DANIEL ZEBULON KING,
Respondent/Appellant.
Case No. 113,628. November 25, 2015
CRAIG COUNTY, OKLAHOMA
HONORABLE REBECCA J. GORE,
TRIAL JUDGE
AFFIRMED
Richard O’Carroll, Sharisse O’Carroll,
O’CARROLL & O’CARROLL, Tulsa, Oklahoma, for Petitioner/Appellee,
P. Gae Widdows, Blake Feamster, WIDDOWS
LAW FIRM, P.C., Tulsa, Oklahoma, for Respondent/Appellant.
BRIAN JACK GOREE, PRESIDING JUDGE:
¶1 This is an appeal of a trial court’s order
granting a custodial parent’s request to relocate
the parties’ minor children from Oklahoma to
Texas. The order is affirmed. It was neither contrary to law nor against the clear weight of the
evidence.
¶2 Andrea Nicole King, now Gage, (Mother)
and Daniel Zebulon King (Father) were married in 2005. They divorced in 2011 and the
court awarded them joint custody of their two
minor boys. Mother began training for a career
as an ultrasound technician and she was offered
Vol. 87 — No. 15 — 5/28/2016
a job in Wyoming. In 2012, she served a notice
to relocate to Wyoming with her children.
Father objected, and Mother withdrew her
request after the job did not materialize.
¶3 The next year, Mother served another
notice of relocation. This time she proposed to
move with the children to Stephenville, Texas
to work at the hospital where her parents are
both employed. Father objected again and the
court denied Mother’s request. The trial court
concluded that the relocation statute is not
applicable in cases of joint custody.
¶4 Later that year both parties filed motions
to modify custody. The court observed that the
parties were unable to communicate or set
aside their differences. The judge terminated
joint custody and awarded sole custody to
Mother. Several weeks passed and Mother
served another notice to relocate to Stephenville. After a three-day trial the court granted
Mother’s request. Father filed this appeal.
I.
¶5 The interpretation and application of the
relocation statutes are subject to de novo review.
Hart v. Bertsch, 2013 OK CIV APP 52, ¶3, 306
P.3d 585, 587. An appellate court must affirm
the trial court’s determinations of the relocating parent’s good faith and the children’s best
interests unless they were contrary to law or
against the clear weight of the evidence. Galarza v. Galarza, 2010 OK CIV APP 19, ¶12, 231
P.3d 694, 698; Harrison v. Morgan, 2008 OK CIV
APP 68, ¶30, 191 P.3d 617, 625.
II.
¶6 Father argues that the trial court should
have denied relocation because Mother abused
the system by circumventing the requirements
of the relocation statute. He contends that
Mother’s third proposed relocation was in bad
faith, as evidenced by the two previous relocation notices which she filed when she and
Father had joint custody of the children.
¶7 It is Father’s position that the relocation
statute prohibits a parent from relocating a
child’s residence while the parents share joint
custody. Because we disagree with Father’s
premise, we hold the trial court committed no
error in granting the relocation over Father’s
abuse-of-the-system allegation.
¶8 We examine the language of two statutes
to determine whether a parent with joint custody may initiate relocation of a child. AccordVol. 87 — No. 15 — 5/28/2016
ing to 43 O.S. 2011 §112.2A, “a parent entitled
to the custody of a child” has a right to change
his residence. That right is subject to the power
of the district court to restrain a removal which
would prejudice the rights or welfare of the
child. Id. Mother is “a parent” and there is
nothing unclear or ambiguous about §112.2A.
¶9 The procedure for a parent to change a
child’s residence is outlined at 43 O.S. 2011
§112.3. Subparagraph G provides: “The person
entitled to custody of a child may relocate the
principal residence of a child after providing
notice as provided by this section unless a parent entitled to notice files a proceeding seeking
a temporary or permanent order to prevent the
relocation within thirty (30) days after receipt
of the notice.” §112.3(G)(1) (emphasis added).
Section 112.3 includes definitions. “A ‘person
entitled to custody of or visitation with a child’
means a person so entitled by virtue of a court
order or by an express agreement that is subject
to court enforcement.” §112.3(A)(3).
¶10 Pursuant to the definition in §112.3(A)
(3), we examine whether Mother was entitled
to custody by virtue of a court order. A decree
of dissolution of marriage was entered by the
court on December 15, 2011. The court found
Mother and Father were parents of the two
minor children and it awarded joint custody.
The decree identified Mother as “the primary
care parent.” We conclude that Mother was a
person entitled to custody by virtue of that
court order within the meaning of §112.3(A)(3).
She qualified as “the person entitled to custody” pursuant to §112.3(G)(1) and was therefore
authorized by the statute to provide a notice of
relocation to Father.
¶11 We hold that when a court orders joint
custody, 43 O.S. 2011 §112.3 permits either parent to initiate the relocation procedure unless
the order provides otherwise.1 Mother did not
act in bad faith merely by pursuing relocation
while she and Father shared joint custody.
III.
¶12 Father argues that Mother’s purpose in
relocating was to alienate the children from
him. The statute specifies that the relocating
person has the burden of proof that the proposed relocation is made in good faith.
§112.3(K). If that burden of proof is met, the
burden shifts to the nonrelocating person to
show that the proposed relocation is not in the
best interest of the child. Id. Father claims
Mother did not sustain her burden to prove her
1123
proposal to relocate the children to Stephenville was made in good faith.
¶13 Good faith consists in an honest intention to abstain from taking any unconscientious advantage of another, even through the
forms or technicalities of law, together with an
absence of all information or belief of facts
which would render the transaction unconscientious. 25 O.S. 2011 §9.
¶14 Mother presented evidence that she
sought to relocate to Texas to pursue a job
opportunity. The prospective job had a slightly
lower wage rate than her current part time job,
but it was full time and included health insurance benefits. She was invited to live without
cost in a house provided by her relatives. She
testified her living expenses would be reduced
by more than $1,000 per month. She also presented evidence that Stephenville is a desirable
community with many opportunities for the
children to enjoy sports and other activities
they enjoy.
¶15 Father argued that relocating was in reality another step in Mother’s patterned strategy
to separate him from his boys. He pointed to
several examples: Mother failed to give him
the schedules for the children’s extracurricular
activities and then criticized him for not attending them; Mother scheduled the children for
excessive activities that naturally diminished
Father’s visitation time; Mother prevented
Father from accessing the children’s school or
medical records; Mother failed to identify
Father as an emergency contact on school, daycare, and medical forms; and Mother proposed
a substantial decrease of Father’s visitation.
¶16 The trial transcripts bear out the court’s
earlier finding that the parties have difficulty
communicating and setting aside their differences. However, the clear weight of the evidence does not support Father’s claim that
Mother’s proposed move was designed to
thwart his relationship with their children. We
hold that Mother’s testimony concerning her
motivation, purpose, and intent for relocating
with the children to Stephenville, Texas supports a finding of good faith.
IV.
¶17 After Mother presented sufficient proof
that she proposed the children’s relocation in
good faith, the burden shifted to Father to
show relocation would not be in their best
interest. §112.3(K). In reaching its decision
1124
regarding a proposed relocation, the court shall
consider the factors set forth at §112.3(J)(1), as
well as any other factor affecting the best interest of the child. §112.3(J)(1)(h).2
¶18 Father challenges the form of the court’s
order. He suggests the order should be reversed
because it does not contain a written evaluation that analyzes each of the eight subsections
of the statute. This is required, explains Father,
according to Harrison v. Morgan, 2008 OK CIV
APP 68, 191 P.3d 617. In Harrison, the Court of
Civil Appeals stated, “when applying the best
interest test under §112.3(J)(1)(a)-(h), the trial
court is to consider and weigh all the evidence,
if any, relevant to the specific topic for each factor and decide whether each factor weighs
either ‘in favor of relocation,’ ‘against relocation,’ or is neutral.” Harrison, ¶27.
¶19 The issue in Harrison was the sufficiency
of the evidence to support the trial court’s
determination, not the form of the order. No
language in §112.3 requires trial courts to make
express written findings. The court’s decision
is presumed to include a finding favorable to
the successful party upon every fact necessary
to support it. Carpenter v. Carpenter, 1982 OK
38, ¶10, 645 P.2d 476, 480.3
V.
¶20 Father also challenges the validity of the
notice of relocation served upon him by Mother. The person entitled to custody of a child
may relocate the child after providing statutory
notice, unless the parent who is entitled to
notice files, within 30 days, a proceeding seeking to prevent the relocation. 43 O.S. 2011
§112.3(G). Father argues he did not receive the
notice required by statute. He claims the trial
court should have granted his motion to dismiss. Mother counters that Father not only had
actual notice of the proceeding, but he exercised
his rights by filing a timely objection, and therefore he was not prejudiced. Mother is correct.
¶21 The statute in question is 43 O.S. 2011
§112.3(C)(2). It lists the following items of information that must be given, if available, with the
notice of intended relocation of the child: (a) the
intended new residence, including the specific
address, if known; (b) the mailing address, if not
the same; (c) the home telephone number, if
known; (d) the date of the intended move or
proposed relocation; (e) a brief statement of the
specific reasons for the proposed relocation of a
child, if applicable; (f) a proposal for a revised
schedule of visitation with the child, if any, and
Vol. 87 — No. 15 — 5/28/2016
(g) a warning to the non-relocating parent that
an objection to the relocation must be made
within thirty (30) days or the relocation will be
permitted.
¶22 Mother did not provide Father with the
subsection (g) warning language. She did not
inform Father in writing that he had to make
an objection within 30 days to avoid an order
permitting the relocation. Despite the omission, Father filed a timely objection and fully
litigated it. Courts must disregard defects in
pleadings or proceedings which do not affect
the substantial rights of the adverse party. 12
O.S. 2011 §78. The trial court correctly denied
Father’s motion to dismiss challenging the sufficiency of Mother’s notice.
VI.
¶23 Father asserts error based on two of the
trial court’s pretrial discovery rulings. Father
filed a motion requesting the court to order
Mother to submit to an examination by Morey
J. Villareal pursuant to 12 O.S. 2011 §3235. The
requested examination was for vocational and
occupational testing. Father desired Mr. Villareal to determine the employability of Mother.
The trial court denied the motion.
¶24 Section 3235(B) of the Oklahoma Discovery Code provides a procedure for a party to
take the physical or mental examination of
another party. Such an examination may be
permitted when a party relies upon his or her
physical or mental condition as an element of a
claim or defense. §3235(A). Vocational or occupational testing is not within the meaning of
physical or mental examination pursuant to
§3235 and the trial court correctly denied the
motion.
¶25 Mother’s ability to obtain employment
as an ultrasound technician in Oklahoma, and
the adequacy of her job search, were relevant
questions. Father was not precluded from conducting statutory discovery by means other
than a §3235 examination.4
¶26 Father also filed a motion requesting the
court to order the parties and the minor children to submit to an evaluation by Laura E.
Fisher, Ph.D. Father proposed that Dr. Fisher
should prepare a report to the court regarding
the issues of custody, visitation, or any mental
health issues. The motion cited no legal authority but Father’s appellate brief asserts the
motion was made pursuant to 12 O.S. 2011
§3235. The trial court denied the motion.
Vol. 87 — No. 15 — 5/28/2016
¶27 None of the parties relied on a claim or
defense calling into question the mental health
of the parents or the children and therefore
§3235 was inapplicable. The court appointed
Daniel Giraldi to serve as guardian ad litem.
Mr. Giraldi was authorized to interview the
children, obtain necessary information, and to
petition the court for appointment of a mental
health professional if necessary. Mr. Giraldi
filed a written report in the case, he appeared
on behalf of the children at the trial, he crossexamined Mother, and he offered testimony
concerning his recommendations to the court.
Father and Mother were given the opportunity
to cross-examine Mr. Giraldi but they declined.
¶28 The guardian ad litem thoroughly
addressed all issues that Father proposed
should be evaluated by Dr. Fisher. The trial
court did not abuse its discretion in denying
Father’s motion for a child custody evaluation.
VII.
¶29 Father asserts the trial court was without
authority to extend the parties’ statutory time
to file a motion for attorney fees. The appealable order, filed January 8, 2015, states, “fees
and costs are hereby reserved and may be
addressed by application filed as late as 60
days from the date of this ruling.” Father filed
an application for attorney fees and costs
within 30 days of the date of the order. Mother
did not file an application for fees and costs.
¶30 Generally, an application for attorney
fees or costs must be filed within thirty days
after the filing of the judgment, decree or
appealable order. 12 O.S. Supp. 2012 §696.4.
Father does not contend that the trial court’s
sua sponte extension of the statutory period has
prejudiced him. One who is not aggrieved by a
court’s decision may not bring an appeal from
it. Cleary Petroleum Corp. v. Harrison, 1980 OK
188, 621 P.2d 528, 530. We decline to review this
assignment of error.
¶31 The trial court’s Order is AFFIRMED.
BUETTNER, J., concurs.
BELL, J., dissents with opinion:
¶32 There is a pattern to the actions of the
mother. She wants to create a barricade in
between the father and the child. The evidence
and the history of her multiple attempts to
erode the relationship of the father and the
child is clear. I cannot agree with the majority
that she acted in good faith. If she feels the
1125
need to move to Texas, she can, just not with
the child. If she feels that it is not a hardship on
the father to travel intrastate to visit his child,
she should allow the father to continue to have
custody. She can come back to Oklahoma to
visit the child. This decision is not in the best
interest of the child.
BRIAN JACK GOREE, PRESIDING JUDGE:
1. Two divisions of the Court of Civil Appeals appear to have
reached different conclusions on this issue. Division 3 held, “Under
joint custody, both parents are custodial parents within the meaning of
§112.2(A).” Galarza v. Galarza, 2010 OK CIV APP 19, ¶16, 231 P.3d 694,
699. Division 2 stated, “a person with joint custody of a child or temporary custody is not a person entitled to ‘the’ custody of the child
within the meaning of the relocation statute.” Caber v. Dahle, 2012 OK
CIV APP 19, ¶30, 272 P.3d 733, 740 [referencing 43 O.S. 2011 §112.3(G)
(1)]. The terms of a custody order governing relocation control over
any conflicting provision of the statute. §112.3(N)(2).
2. Section 112.3(J) provides:
J. 1. In reaching its decision regarding a proposed relocation, the
court shall consider the following factors:
1. a. the nature, quality, extent of involvement, and duration of
the child’s relationship with the person proposing to relocate and
with the nonrelocating person, siblings, and other significant
persons in the child’s life,
b. the age, developmental stage, needs of the child, and the
likely impact the relocation will have on the child’s physical,
educational, and emotional development, taking into consideration any special needs of the child,
c. the feasibility of preserving the relationship between the nonrelocating person and the child through suitable visitation
arrangements, considering the logistics and financial circumstances of the parties,
d. the child’s preference, taking into consideration the age and
maturity of the child,
e. whether there is an established pattern of conduct of the person seeking the relocation, either to promote or thwart the relationship of the child and the nonrelocating person,
f. whether the relocation of the child will enhance the general
quality of life for both the custodial party seeking the relocation
and the child, including but not limited to financial or emotional
benefit or educational opportunity,
g. the reasons of each person for seeking or opposing the relocation, and
h. any other factor affecting the best interest of the child.
2. The court may not:
a. give undue weight to the temporary relocation as a factor in
reaching its final decision, if the court has issued a temporary
order authorizing a party seeking to relocate a child to move
before final judgment is issued, or
b. consider whether the person seeking relocation of the child
has declared that he or she will not relocate if relocation of the
child is denied.
3. The appealed order was filed January 8, 2015 and appears to
have been prepared by one of the parties, as directed by the trial court.
The order does not include any rationale for the court’s determination
that relocation should be granted. It did not include findings that
Mother’s request was in good faith or that relocation would be in the
best interest of the children. However, the appealed order was preceded by a detailed written Decision filed by the court on November
19, 2014. The Decision appears to have been prepared by the trial
judge. It contains numerous citations to the relevant statutes and case
law. It includes headings pertaining to each of the §112.3(J)(1) factors
followed by specific findings that are supported by the parties’ trial
testimony.
4. Father called Mr. Villareal as a witness at trial. The court heard
evidence supporting Father’s defense that Mother could have found
local employment as a sonographer and therefore her proposal to
move to Texas was not genuinely related to employment but was in
bad faith.
1126
2016 OK CIV APP 32
AUSTIN N. SHOPTAW, Plaintiff/Appellee,
vs. STATE OF OKLAHOMA ex rel.
DEPARTMENT OF PUBLIC SAFETY,
Defendant/Appellant.
Case No. 113,405. August 27, 2015
OKLAHOMA COUNTY, OKLAHOMA
HONORABLE JAMES B. CROY,
TRIAL JUDGE
AFFIRMED
Brian K. Morton, Oklahoma City, Oklahoma,
for Plaintiff/Appellee
Whitney A. Herzog Scimeca, ASSISTANT
GENERAL COUNSEL, OKLAHOMA DEPARTMENT OF PUBLIC SAFETY, Oklahoma
City, Oklahoma, for Defendant/Appellant
JANE P. WISEMAN, JUDGE:
¶1 State of Oklahoma ex rel. Department of
Public Safety (DPS) appeals the trial court’s
order setting aside a DPS order revoking the
license of Austin N. Shoptaw. Based on our
review of the relevant facts and applicable law,
we affirm the decision of the trial court.1
FACTS AND PROCEDURAL
BACKGROUND
¶2 The facts surrounding the stop and arrest
are not in dispute. On September 30, 2013,
Shoptaw was arrested in Oklahoma City by
Officer William Robison2 for actual physical
control of a motor vehicle while intoxicated.
Shoptaw refused the State’s sobriety test and
was given the “Officer’s Affidavit and Notice
of Revocation/Disqualification” (affidavit and
notice). Shoptaw timely requested an administrative hearing.
¶3 On January 26, 2014, Officer Robison completed a “Supplemental Sworn Report to the
Officer’s Affidavit and Notice of Revocation/
Disqualification” (supplemental affidavit) provided to him by DPS. Officer Robison testified
that although he gave a copy of the affidavit
and notice of revocation to Shoptaw, he did not
give him a copy of the supplemental affidavit
and does not know if a copy was ever given to
him. Shoptaw’s attorney, however, testified
during the hearing that he received a copy of
the supplemental affidavit on February 7, 2014.
Vol. 87 — No. 15 — 5/28/2016
¶4 On March 18, 2014, DPS conducted an
administrative hearing and issued an order
on March 25, 2014, sustaining the revocation
of Shoptaw’s driver’s license. Shoptaw timely
appealed to the Oklahoma County District
Court.
¶5 At the conclusion of the hearing on May
28, 2014, the trial court set aside the revocation
of Shoptaw’s driver’s license finding that the
only revocation notice he received was based
on a facially invalid officer’s affidavit. The trial
court’s order states in part:
The Court makes it[]s ruling based on
the testimony given, and on applicable
laws, and rules as follows:
1) Pursuant to 47 O.S. §6-211(1), the revocation of [Shoptaw’s] driver’s license arising from the arrest of [Shoptaw] on
September 30th, 2013, is hereby set aside;
2) [DPS] shall not refile any implied consent action against [Shoptaw] as a result
of the arrest;
3) The supersedeas bond posed [sic] in this
case shall be exonerated.
The Revocation Order entered by [DPS]
on the 25th day of March, 2014, is hereby
set aside. [Shoptaw’s] Appeal is hereby
sustained by the Court.
Here, the only notice given to the driver
has been deemed facially invalid. The only
revocation notice he received was based on
that facially invalid affidavit. The supplemental affidavit says “whatever I said back
then is true.” They did not even have Officer [Robison] do a new affidavit. I don’t
know what that would have gotten them;
it’s not before me. I think it is unfortunate
that here you have an officer doing his job,
here you have a guy who’s plainly intoxicated, he’s got a history of intoxication and
yet, I find myself having to set it aside.
Revocation is set aside.
¶10 It is undisputed that the officer’s affidavit, by itself, does not comply with 47 O.S.2011
§ 753 or § 754(C) because it fails to state “that
the officer had reasonable grounds to believe
the arrested person had been driving [operating]
or was in actual physical control of a motor
vehicle . . . while under the influence.” Id. Section 753 is applicable in this case because Shoptaw refused to submit to a blood or breath test.
¶11 This Court in Roulston v. State ex rel.
Department of Public Safety, 2014 OK CIV APP
46, 324 P.3d 1261 concluded:
¶6 DPS appeals.
STANDARD OF REVIEW
¶7 The issue before us involves a question of
law, which we review de novo. Justus v. State ex
rel. Dep’t of Pub. Safety, 2002 OK 46, ¶ 3, 61 P.3d
888. “In a de novo review, we have plenary,
independent and non-deferential authority to
determine whether the trial court erred in its
application of the law.” Id.
ANALYSIS
¶8 The issues on appeal proposed by DPS all
stem from whether the trial court erred in finding the supplemental affidavit failed to cure
the defect found in the affidavit and notice. Of
these issues, the trial court seemed to be most
concerned about the fact that the only revocation notice Shoptaw received was based on an
invalid officer’s affidavit. Based on this conclusion, the trial court set aside the revocation.
¶9 The trial court concluded the following
during the May 2014 hearing:
Vol. 87 — No. 15 — 5/28/2016
Notice has to be given to the driver, he
has 15 days after that notice is given in
order to request an administrative hearing,
and says the officer’s affidavit, setting out
those grounds will be deemed sufficient
unless that they’re facially invalid. That’s
in the statute.
Our review of the applicable statutory
language reveals a plain and unambiguous
directive as to the express content of the
Officer’s sworn report. The statute mandates the sworn report expressly provide
“that the officer had reasonable grounds to
believe the arrested person had been driving
. . . a motor vehicle . . . while under the influence …” § 753 (emphasis added). Further, it
is upon the Commissioner of Public Safety’s
receipt of this specific sworn report, which
triggers the license revocation.
....
While the factual details in the Affidavit
concerning the Driver’s driving conduct
and condition may constitute the actual
grounds giving rise to the Officer’s reasonable belief that the Driver had been driving
under the influence, this specific statutorily
required sworn statement regarding that belief
1127
is notably absent. Because the Officer’s
Affidavit did not include the sworn report
as required by statute as to the Officer’s
reasonable grounds to believe the arrested
person had been driving or was in actual
physical control of a motor vehicle while
under the influence of alcohol, the evidence on which the administrative revocation action rested is patently deficient. Just
as in Chase [v. State ex rel. Dep’t of Public
Safety, 1990 OK 78, 795 P.2d 1048], we find
the Affidavit upon which the revocation
order rests fatally flawed as a matter of law
and thus, that order was properly set aside
by the trial court.
Id. ¶¶ 9, 11 (footnote omitted); see also Tucker v.
State ex rel. Dep’t of Pub. Safety, 2014 OK CIV
APP 45, ¶ 11, 326 P.3d 542 (holding the revocation must be set aside because the officer’s
affidavit failed to meet the statutory requirements as to the officer’s reasonable grounds to
believe the arrested person had been driving
while under the influence).
¶12 DPS argued during the hearing that the
supplemental affidavit is “not a stand-alone
item” but instead “goes with the officer’s affidavit and notice of revocation.”3 Put differently, DPS argues that even though the affidavit,
by itself, does not comply with 47 O.S.2011 §
753 (refusal) or § 754 (test and procedure), the
supplemental affidavit containing the requisite
language brings it into compliance. DPS additionally argues that § 754(B) does not require a
sworn affidavit “to be completed at the time of
arrest” and “does not have to be on the same
sheet of paper as the notice” and does not have
to be served on the driver.
¶13 Section 754(B) states:
If the evidence of driving privilege surrendered to or seized by the officer has not
expired and otherwise appears valid, the
officer shall issue to the arrested person a dated
receipt for that driver license, permit, or other
evidence of driving privilege on a form prescribed by the Department of Public Safety.
This receipt shall be recognized as a driver
license and shall authorize the arrested person
to operate a motor vehicle for a period not to
exceed thirty (30) days. The receipt form shall
contain and constitute a notice of revocation of
driving privilege by the Department effective in
thirty (30) days. The evidence of driving
privilege and a copy of the receipt form
issued to the arrested person shall be
attached to the sworn report of the officer
1128
and shall be submitted by mail or in person
to the Department within seventy-two (72)
hours of the issuance of the receipt. The
failure of the officer to timely file this
report shall not affect the authority of the
Department to revoke the driving privilege
of the arrested person.
47 O.S.2011 § 754(B)(emphasis added).
¶14 The notice, which contains the “receipt”
referenced above in § 754(B), requires the officer to issue a copy to the arrested person and
constitutes the notice of revocation by DPS
effective in thirty days. 47 O.S.2011 § 754(B).
We agree with DPS there is no statutory requirement the affidavit and notice of revocation be
contained on the same form. And although this
has led to considerable confusion, we agree
with DPS that only the notice of revocation
contained in the “receipt” is required to be
served on the driver.
¶15 However, in order to determine whether
the supplemental affidavit cures the defect of
the officer’s original affidavit, we must examine this issue in chronological order. It is undisputed that the affidavit and notice form dated
September 30, 2013, contains an invalid officer’s affidavit. As stated in Roulston, “[b]ecause
the Officer’s Affidavit did not include the
sworn report as required by statute as to the
Officer’s reasonable grounds to believe the
arrested person had been driving or was in
actual physical control of a motor vehicle while
under the influence of alcohol, the evidence on
which the administrative revocation rested is
patently deficient.” Roulston, 2014 OK CIV APP
46, ¶ 11. If the officer’s affidavit which contains
the evidence supporting revocation of a license
is invalid, then the notice of revocation issued
to the driver and any subsequent revocation
order issued by DPS are also invalid.
¶16 As the trial court correctly determined,
the only notice provided to Shoptaw in this
case was invalid because the only revocation
notice he received was based on an invalid affidavit. The supplemental affidavit does not contain a new notice of revocation served on Shoptaw as required by 47 O.S.2011 § 754, so we
cannot conclude the revocation was valid. We
affirm the trial court’s decision in this matter.
CONCLUSION
¶17 We conclude the trial court correctly set
aside the revocation order and reinstated Shoptaw’s license.
Vol. 87 — No. 15 — 5/28/2016
¶18 AFFIRMED.
GOODMAN, V.C. J., and FISCHER, P.J., concur.
JANE P. WISEMAN, JUDGE:
1. DPS filed a “Suggested Aid to the Court” attaching a Court of
Civil Appeals Opinion issued in Case Number 113,061. We note, however, that at the time this No. 113,061 Opinion was issued, a petition for
certiorari was pending before the Oklahoma Supreme Court, and no
mandate has issued. Because mandate has not issued, it is considered
an unpublished opinion. Supreme Court Rule 1.200(d)(2), 12 O.S.
Supp. 2014, ch. 15, app. 1. “Because unpublished opinions are deemed
to be without value as precedent and are not uniformly available to all
parties, opinions so marked shall not be considered as precedent by
any court or cited in any brief or other material presented to any court,
except to support a claim of res judicata, collateral estoppel, or law of
the case.” Supreme Court Rule 1.200(c)(5), 12 O.S. Supp. 2014, ch. 15,
Vol. 87 — No. 15 — 5/28/2016
app. 1. We therefore deny consideration or application of the “Suggested Aid to the Court” to this case.
2. Although the officer was referred to as Officer Robinson in the
transcript, we note his name is spelled “Robison” in the affidavit and
notice and supplemental affidavit. Thus, we spell it “Robison.”
3. The supplemental affidavit states in relevant part:
On the above date, time and location the above named person
was arrested, and I had reasonable grounds to believe the person
was driving or in actual physical control of a motor vehicle upon
a public road, highway, street, turnpike, public parking lot, or
other public place, or upon a private road, street, alley or lane
which provides access to one or more single or multi-family
dwelling within this state while under the influence of alcohol
and/or other intoxicating substances as prohibited by law, as
indicated in the attached Officer’s Affidavit and Notice of Revocation/Disqualification.
In accordance with Title 12 O.S. Section 426, “I state under penalty of perjury under the laws of Oklahoma that the foregoing is
true and correct.”
1129
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1130
Vol. 87 — No. 15 — 5/28/2016
Disposition of Cases
Other Than by Published Opinion
COURT OF CRIMINAL APPEALS
Wednesday, May 4, 2016
F-2014-1051 — Vance Dillon Wright, Appellant, was tried by jury and found guilty of first
degree murder, in violation of 21 O.S.2011, §
701.7(A), in the District Court of Rogers County, Case No. CF-2012-536. The jury sentenced
Appellant to life imprisonment. The Honorable J. Dwayne Steidley, District Judge, pronounced judgment and sentence accordingly.
Mr. Wright has perfected his appeal. AFFIRMED. Opinion by: Lewis, J.; Clancy Smith,
P.J., Concurs; Lumpkin, V.P.J., Concurs; Johnson, J., Concurs; Hudson, J., Concurs.
F-2015-86 — Joshua Lee Richards, Appellant,
appeals from an order, entered by the Honorable Robert G. Haney, District Judge, revoking
him from the Drug Court Program in Case No.
CF-2012-165 in the District Court of Ottawa
County, and sentencing him in accordance
with the plea agreement to a term of twenty
years, with all but the first fifteen years suspended on Count 1; and to a term of ten years,
all suspended on Count 2; with the sentences
to run consecutively. AFFIRMED. Opinion by:
Lewis, J.; Smith, P.J., Concurs; Lumpkin, V.P.J.,
Concurs; Johnson, J., Concurs; Hudson, J.,
Concurs.
C-2015-1033 — Danyl Health Skelton, Petitioner, entered a guilty plea for the crime of
Possession of Controlled Dangerous Substance
(Methanphetamine) (Count 1) After Former
Conviction of a Felony in Case No. CF-12-72 in
the District Court of McIntosh County. On
November 21, 2013, Honorable Thomas M. Bartheld, District Judge, accepted Skelton’s plea
and at Petitioner’s request, delayed sentencing
to allow Petitioner to attempt to complete the
McIntosh County Drug Court Program. On June
23, 2015, the State filed an application to terminate Petitioner from Drug Court. On September
10, 2015, the Honorable James D. Bland, District Judge, held an evidentiary hearing on the
State’s application and terminated Petitioner
from Drug Court and sentenced Petitioner to
imprisonment for fifteen (15) years. On September 21, 2015, Petitioner filed his Motion to
Withdraw Plea of Guilty. On November 19,
Vol. 87 — No. 15 — 5/28/2016
2015, the Honorable James D. Bland, District
Judge, held a hearing and denied Petitioner’s
motion. It is that denial which is the subject of
this appeal. The order of the District Court
denying Petitioner’s motion to withdraw
guilty plea is AFFIRMED. Opinion by: Lumpkin, V.P.J.; Smith, P.J., Concur; Johnson, J., Concur; Lewis, J., Concur; Hudson, J., Concur.
Thursday, May 5, 2016
F-2015-357 — Charlene Annette Taylor, Appellant, was tried and convicted in a non-jury
trial for the crime of Unlawful Possession of
Controlled Dangerous Substance with Intent to
Distribute, After Former Conviction of Two or
More Felonies, in Case No. CF-2013-66, in the
District Court of Choctaw County. The Honorable Gary Brock, Special Judge, sentenced Taylor to one-hundred thirty months imprisonment plus nine months post-imprisonment
supervision. From this judgment and sentence
Charlene Annette Taylor has perfected her
appeal. AFFIRMED. Opinion by: Hudson, J.;
Smith, P.J., Concurs; Lumpkin, V.P.J., Concurs;
Johnson, J., Concurs; Lewis, J., Concurs.
PCD-2013-936 — Petitioner, Mica Alexander
Martinez, was tried by jury and found guilty of
Counts 1 and 2, murder in the first degree, and
Count 3, assault and battery with a dangerous
weapon, in the District Court of Comanche
County, Case No. CF-2009-473. In the penalty
trial, the jury found that defendant knowingly
created a great risk of death to more than one
person; and that the murders were especially
heinous, atrocious, or cruel, and sentenced
Appellant to death in Counts 1 and 2, and 10
years imprisonment in Count 3. This Court
affirmed on March 8, 2016, in Martinez v. State,
2016 OK CR 3, ___ P.3d ___. On June 5, 2015,
Petitioner filed an Application for Post-Conviction Relief and related motions. We now address
Petitioner’s request for post-conviction relief.
Petitioner has perfected his appeal. Petitioner’s
Application for Post-Conviction Relief and
Motion for Evidentiary Hearing and Discovery
on Post-Conviction Claims are DENIED. Opinion by: Lewis, J.; Clancy Smith, P.J., Concurs;
Lumpkin, V.P.J., Concurs; Johnson, J., Concurs;
Hudson, J., Concurs.
1131
Friday, May 6, 2016
F-2015-158 — Appellant, David Lee Daniels,
II, was tried by jury and found guilty of Count
1, first degree burglary, in violation of 21
O.S.2011, § 1431; and Count 2, concealing stolen property, in violation of 21 O.S.2011, § 1713;
in the District Court of Oklahoma County, Case
No. CF-2011-1962. The jury found Appellant
committed these crimes after two or more felonies and sentenced Appellant to thirty-five (35)
years imprisonment on Count 1 and ten (10)
years imprisonment on Count 2. The Honorable
Glenn M. Jones, District Judge, pronounced
judgment and ordered the sentences served concurrently. The trial court sentenced accordingly.
From this Judgment and Sentence, Daniels has
perfected his appeal. AFFIRMED. Opinion by:
Lewis, J.; Clancy Smith, P.J., Concurs; Lumpkin, V.P.J., Concurs; Johnson, J., Concurs; Hudson, J., Concurs.
F-2015-352 — Cyndie Dee Jones, Appellant,
was tried by jury for the crime of Enabling
Child Sexual Abuse (Counts 1 and 2) in Case
No. CF-2013-174 in the District Court of Haskell
County. The jury returned a verdict of guilty and
recommended as punishment imprisonment for
eighteen (18) years and a $500 fine in each count.
The trial court sentenced accordingly and
ordered the sentences to run concurrently. From
this judgment and sentence Cyndie Dee Jones
has perfected her appeal. The judgment and sentence is AFFIRMED. Opinion by: Lumpkin,
V.P.J.; Smith, P.J., Concur in Results; Johnson, J.,
Concur in Results; Lewis, J., Concur; Hudson, J.,
Concur.
Friday, May 13, 2016
F-2014-1087 — Matthew Strickland, Appellant, was tried by jury and found guilty of
Count 1, first degree murder, in violation of 21
O.S.Supp.2012, § 701.7(A); Count 2, assault and
battery with a deadly weapon, in violation of
21 O.S.2011, § 652(C); and Count 3, using body
armor in the commission of a felony, in violation of 21 O.S.2011, § 1289.26(A), in the District
Court of Oklahoma County, Case No. CF-20132774. The jury sentenced Appellant to life
imprisonment in Count 1, ten (10) years
imprisonment in Count 2, and five (5) years
imprisonment in Count 3. The Honorable
Donald Deason, District Judge, pronounced
judgment and ordered Counts 2 and 3 served
consecutively to Count 1 and concurrently
with each other. The trial court sentenced ac1132
cordingly. From this Judgment and Sentence,
Matthew Strickland has perfected an appeal.
AFFIRMED Opinion by: Lewis, J.; Clancy
Smith, P.J., Concurs; Lumpkin, V.P.J., Concurs;
Johnson, J., Concurs; Hudson, J., Concurs.
F-2015-208 — Appellant, Martin Shon High,
was tried by the court and found guilty of murder in the first degree, in violation of 21 O.S.
2011, § 701.7(A), in the District Court of Garvin
County, Case No. CF-2012-159. The Hon. Steven C. Kendall, Associate District Judge, sentenced Appellant to life imprisonment without
the possibility of parole. The trial court sentenced accordingly. From this Judgment and
Sentence, Mr. High has perfected his appeal.
AFFIRMED. Opinion by: Lewis, J.; Clancy
Smith, P.J., Concurs; Lumpkin, V.P.J., Concurs
in Results; Johnson, J., Concurs; Hudson, J.,
Concurs.
F-2015-36 — Jimmy Don Myrick, Appellant,
was tried in a non-jury trial for the crime of
Possession of a Controlled Dangerous Substance in Case No. CF-2012-74 in the District
Court of McCurtain County. The Honorable
Gary Brock, Special Judge, who presided at
trial, found Myrick guilty and sentenced him
to thirty months imprisonment. From this
judgment and sentence Jimmy Don Myrick has
perfected his appeal. The Judgment and Sentence of the district court is AFFIRMED. The
State’s Motion to Supplement is GRANTED.
Opinion by: Johnson, J.; Smith, P.J., concurs;
Lumpkin, V.P.J., concurs in part and dissents in
part; Lewis, J., concurs; Hudson, J., concurs in
results.
S-2015-402 — State of Oklahoma, Appellant,
charged Appellee Henry Joseph Arthur, Jr. for
the crime of Forgery in the Second Degree,
After Two or More Felony Convictions in Case
No. CF-2013-6616 in the District Court of Oklahoma County. On August 15, 2014, the Honorable Susan K. Johnson, Special Judge, bound
Arthur over for trial following preliminary
hearing. At a hearing held April 16, 2015, the
Honorable Ray C. Elliott, District Judge sustained Arthur’s motion to quash. The State of
Oklahoma appeals that order. The Order of the
District Court of Oklahoma County quashing
this case for insufficient evidence is REVERSED.
The matter is REMANDED for further proceedings consistent with this opinion. Opinion
by: Lumpkin, V.P.J.; Smith, P.J., Concur; Johnson, J., Concur; Lewis, J., Concur in Result;
Hudson, J., Dissents.
Vol. 87 — No. 15 — 5/28/2016
F-2015-429 — Yancy Ray Douglas, Appellant,
was tried by jury for the crime of Possession of
a Firearm, After Former Conviction of a Felony
(Count 1), Obstructing an Officer (Count 3),
and Assault and Battery with a Dangerous
Weapon (Count 4) in Case No. CF-2012-1446 in
the District Court of Oklahoma County. The
jury returned a verdict of guilty and recommended as punishment imprisonment for ten
(10) years in Count 1, six (6) months in the
county jail and a $500.00 fine in Count 3, and
seven (7) years imprisonment in County 4. The
trial court sentenced accordingly ordering the
sentences to run consecutively. From this judgment and sentence Yancy Ray Douglas has
perfected his appeal. The Judgment and Sentence is AFFIRMED. Opinion by: Lumpkin,
V.P.J.; Smith, P.J., Concur in Results; Johnson, J.,
Concur in Results; Lewis, J., Concur in Results;
Hudson, J., Concur.
ACCELERATED DOCKET
Friday, May 6, 2016
S-2015-771 — In the District Court of Garvin
County, Carl Edward Prince a/k/a Carl Edward Harper, Appellee, was charged by Information in Case No. CF-2013-19 with the crimes
of Count 1: Possession of Marijuana with Intent to Distribute within 2000 Feet of a School;
Count 2: Maintaining Place for Keeping/Selling Controlled Substance; and Count 3: Unlawful Use of a Police Radio while in Commission
of a Felony. On August 4, 2015, the Honorable
Trisha Misak, Special Judge, sitting as magistrate, sustained Appellee’s demurrer to Count
2. The State appealed. The Honorable George
W. Butner, District Judge, heard that appeal
and sustained the magistrate’s decision. The
State now appeals to this Court. AFFIRMED.
Opinion by: Lewis, J.; Smith, P.J., Concurs;
Lumpkin, V.P.J., Concurs; Johnson, J; Concurs;
Hudson, J.; Dissents.
COURT OF CIVIL APPEALS
(Division No. 1)
Friday, April 29, 2016
114,014 — In Re the Marriage of Ginger A.
Ward Bogaski and George A. Bogaski: Ginger A.
Ward Bogaski, Petitioner/Appellee, vs. George
A. Bogaski, Respondent/Appellant. Appeal
from the District Court of Cleveland County,
Oklahoma. Honorable Thad Balkman, Trial
Judge. This is an appeal from an order awarding attorney fees following a divorce decree.
Because we hold the trial court erroneously
granted fees pursuant to 43 O.S. §110(D) based
Vol. 87 — No. 15 — 5/28/2016
on the movant’s prevailing party status, we
reverse. REVERSED. Opinion by Goree, J.;
Buettner, V.C.J., P.J., and Mitchell, J., concur.
114,031 — Reyna B. Portes, Plaintiff/Appellee, vs. Robert Joe Pate, II, Defendant/Appellant. Appeal from the District Court of Bryan
County, Oklahoma. Honorable Trace C. Sherrill, Trial Judge. Defendant/Appellant, Robert
Joe Pate, II, seeks review of the trial court’s
order of protection granted to Plaintiff/Appellee, Reyna B. Portes. Because Pate failed to
submit a narrative statement in compliance
with Okla.Sup.Ct.R. 1.31, the record presents
nothing for our review. Because there is no
legally acceptable and properly authenticated
record of the trial court proceedings, we are
unable to determine whether the trial court’s
order was clearly erroneous. We must presume
that the trial court did not err. The trial court’s
order is affirmed. AFFIRMED. Opinion by
Goree, J.; Buettner, V.C.J., P.J., and Mitchell, J.,
concur.
114,495 — In Re M.S.M., Deprived Child:
State of Oklahoma, Petitioner/Appellee, vs.
Don Meeks, Respondent/Appellant. Appeal
from the District Court of Tulsa County, Oklahoma. Honorable Doris Fransein, Judge.
Respondent/Appellant Don Meeks (Father)
appeals from judgment entered on a jury verdict terminating his parental rights as to minor
child M.S.M. We hold there is clear and convincing evidence Father failed to correct the
condition of substance abuse and that termination is in the best interest of the child.
AFFIRMED. Opinion by BUETTNER, V.C.J.,
P.J.; MITCHELL, J., and GOREE, J., concur.
Friday, May 6, 2016
114,291 — In re the Matter of D.B., K.D.B.
AND L.C.B., Children under 18 years of Age:
Curtis Hubbard, Appellant, vs. State of Oklahoma, Appellee. Appeal from the District Court
of Tulsa County, Oklahoma. Honorable Rodney Sparkman, Trial Judge. Curtis Hubbard
(Father), seeks review of the trial court’s order
terminating his parental rights to L.C.B. (Child).
We affirm because the order is supported by
clear and convincing evidence that Child
would be harmed by the continuation of
Father’s parental rights. AFFIRMED. Opinion
by Goree, J.; Buettner, V.C.J., P.J., and Mitchell,
J., concur.
1133
113,639 — Britney K. Morrison, Plaintiff/
Appellee, vs. Mia R. Frazier, Defendant/Appellant. Appeal from the District Court of Washington County, Oklahoma. Honorable Russell
Vaclaw, Trial Judge. Plaintiff/Appellee, Britney
K. Morrison, filed a petition for a protective
order against Defendant/Appellant, Mia R.
Frazier, and the court granted it. Morrison testified she repeatedly asked Frazier to stay
away from her home and to leave her alone.
Frazier went to the home anyway and an argument ensued. Morrison called the police and
alleged Frazier pushed her. Frazier contradicted virtually all of Morrison’s testimony. A
court may enter a protective order for willful,
malicious, and repeated harassment evidenced
by a series of acts taken in disregard of an expressed desire that the contact be discontinued.
22 O.S. 2011 §60.1(2). The trial court was in the
best position to judge the credibility of the witnesses. There was no abuse of discretion and
the order is AFFIRMED. Opinion by Goree, J.;
114,077 — In Re the Matter of J.R.H., a Minor
Child: Janay Fern Ogston, Appellant vs. Katie
Hayes, Appellee. Appeal from the District
Court of Harmon County, Oklahoma. Honorable Mike Winford Warren, Judge. Appellant
(Grandmother), maternal grandmother of the
minor child, J.R.H., appeals the trial court’s
decision to transfer jurisdiction of this custody
proceeding to the district court in Grant County, Kansas under the Uniform Child Custody
Jurisdiction and Enforcement Act (“UCCJEA”),
43 O.S. §§551-101, et seq. Appellee (Mother),
natural mother of J.R.H. and the daughter of
Grandmother, argues the trial court was correct to transfer the matter to Kansas as Oklahoma did not retain exclusive, continuing
jurisdiction and was an inconvenient forum.
The facts of this case demonstrate Grandmother and J.R.H. moved to Cimarron County,
Oklahoma approximately one month before
the filing of Mother’s Application with the
intent to remain. This was undisputed. Grandmother contends she and the child have a substantial connection with Oklahoma due to
property, business and family in Cimarron
County. All current and future evidence relevant to the custody dispute will be available in
Oklahoma. It can be demonstrated that all parties have a connection to Oklahoma and substantial evidence is or will be available for the
custody trial. We find the trial court abused its
1134
discretion when it determined Oklahoma no
longer retained exclusive, continuing jurisdiction over the matter. While the record demonstrates Grandmother and J.R.H. spent nearly
all of J.R.H.’s life outside of Oklahoma, the trial
court’s decision to transfer the matter to Kansas creates the untenable result of a Kansas
court exercising jurisdiction over a custody
matter where the minor child and person acting as a parent reside in Oklahoma and where
there is an adoption petition for the same child
simultaneously pending in Oklahoma. Under
the particular facts of this case, an Oklahoma
Court is in the best possible position to resolve
this custody matter. Because Oklahoma (as a
state) retained jurisdiction, the District Court of
Harmon County had the authority to transfer
venue of this case intrastate to a more appropriate county. Here, venue would be proper in
Cimarron County as both Grandmother and
J.R.H. reside there. The record is clear that none
of the parties retain any connection to Harmon
County, however, the record demonstrates that
Oklahoma, as a state, retains continuing, exclusive jurisdiction over this child custody dispute
because of the parties’ connections with Cimarron County and Grandmother and J.R.H.’s residence there. The decision of the trial court is
REVERSED AND REMANDED WITH
INSTRUCTIONS to transfer the case to the District Court of Cimarron County. Opinion by
Mitchell, J.; Buettner, V.C.J., P.J. and Goree, J.,
concur.
114,315 — Olivia Heim, Petitioner, vs. Westhaven Nursing Home, Great American Alliance
Insurance Co., and The Workers’ Compensation
Commission, Respondents. Proceeding to Review an Order of the Workers’ Compensation
Commission. Petitioner Olivia Heim (Claimant) appeals from an order of the Workers’
Compensation Commission (Commission)
affirming the decision of the Administrative
Law Judge (ALJ). The ALJ found Claimant did
not sustain a compensable injury to her right
shoulder and denied additional medical treatment for her right arm and right hand. Claimant argues the Commission erred by finding
the injury to her right shoulder was not compensable and that she was denied due process
and a remedy for her injury. We hold substantial evidence supports the finding Claimant’s
right shoulder injury was not compensable. We
further hold Claimant was not denied due process or a remedy guaranteed by the Oklahoma
Constitution. AFFIRMED. Opinion by Buettner,
V.C.J., P.J.; Mitchell, J., and Goree, J., concur.
Vol. 87 — No. 15 — 5/28/2016
114,397 — In the Matter of H.M.C., Adjudicated Deprived Child: Virginia Crawford, Appellant, vs. State of Oklahoma, Appellee. Appeal from the District Court of Oklahoma
County, Oklahoma. Honorable Susan K. Johnson, Trial Judge. Virginia Crawford (Mother)
appeals the trial court order adjudicating
H.M.C. (Child) deprived and terminating her
parental rights pursuant to 10A O.S. 2011 §1-4904(B)(9). Child was removed from the home
of her mother and taken into emergency custody of the Department of Human Services by
order of the Oklahoma County District Court
based on allegations of failure to protect from
sexual abuse. The alleged perpetrator was
Child’s fifteen-year-old sister. At the conclusion of the trial, there was a hearing outside the
presence of the jury wherein the trial court
found Child to be adjudicated as deprived. The
jury entered a verdict terminating Mother’s
parental rights based on failure to protect from
heinous and shocking sexual abuse. Mother
appeals, arguing she was not given an opportunity to correct the conditions which led to the
deprived-child status. Mother’s due process
rights were not violated even though the trial
court did not order an ISP to correct conditions
leading to the deprived adjudication. Statutory
and case law provides for “immediate termination” of parental rights upon a finding of failure to protect from abuse that is heinous and
shocking. Clear and convincing evidence was
presented that proved Mother never accepted
responsibility for Child’s sexual abuse and,
therefore, she was not capable of protecting
Child. Termination of Mother’s parental rights
is in Child’s best interest. AFFIRMED. Opinion
by Goree, J.; Buettner, V.C.J., P.J., and Mitchell,
J., concur.
114,398 — In the Matter of E.R.R., Adjudicated Deprived Child: Linette Johnson-Rodriguez, Appellant, vs. State of Oklahoma, Appellee. Appeal from the District Court of Oklahoma County, Oklahoma. Honorable Cassandra
M. Williams, Trial Judge. Linette JohnsonRodriguez (Mother) seeks review of the trial
court’s judgment based on a jury verdict terminating Mother’s parental rights to E.R.R. We
affirm because the trial court did not abuse its
discretion in the conduct of the trial and its
judgment is supported by clear and convincing
evidence. AFFIRMED. Opinion by Goree, J.;
Vol. 87 — No. 15 — 5/28/2016
(Division No. 2)
Wednesday, April 27, 2016
113,950 — DirecTV and Zurich American
Insurance, Petitioners, v. Melody E. Tucker 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. L.
Brad Taylor, Trial Judge. The panel vacated the
order of the trial court and found Respondent
Melody E. Tucker (Claimant) sustained compensable injuries to her right leg and shoulder. We
sustain the panel’s Order because it is not clearly
against the weight of the evidence nor contrary
to law. Claimant’s counsel admits on appeal that
he can point to no causal “mechanism” that
caused the on-premises fall apart from the fact that
Claimant had to walk back to her work space and,
while doing so, (as Claimant testified) “notice
what’s missing and what needs to be fixed.”
However, in Pauls Valley Travel Center v. Boucher,
2005 OK 30, 112 P.3d 1175, the Oklahoma
Supreme Court explained that “[w]alking is one
among many hazards in the employment-related cluster of on-the-job activities, just as is moving one’s hands, back or legs is related to work
performance.” Id. ¶ 12. Moreover, although
Claimant was overweight, the Boucher Court
also explained that “an employer takes a worker
as it finds [the worker], including all of [the
worker’s] bodily flaws.” Id. ¶ 14. Pursuant to
Boucher, we sustain. SUSTAINED. Opinion from
Court of Civil Appeals, Division II, by Barnes, J.;
Rapp, J., concurs, and Thornbrugh, P.J., concurs
specially.
113,719 — In re the Marriage of: Sheila M.
Lemmon, Petitioner/Appellee, vs. Jim Loyd
Piercy, Respondent/Appellant. Appeal from
Order of the District Court of Beckham County,
Hon. Michelle Kirby Roper, Trial Judge. Respondent Husband appeals from the trial court’s
order determining the existence of a common
law marriage between the parties, granting a
decree of divorce, and making a division of the
marital estate. The testimony here was in total
conflict, and the cornerstone of Husband’s argument on appeal is that the trial court erred in
finding that the testimony of Wife and her witnesses was more credible and persuasive than
the testimony of Husband and his witnesses on
the issue of whether there was an actual and
mutual agreement to enter into the marital relationship. The record is clear that the trial court
made a reasonable effort to reconcile the evi-
1135
dence that detracted from the existence of a common law marriage with evidence supporting the
existence of a common law marriage. While the
record contains conflicting evidence from which
the trial court could have reached a different
conclusion, this does not warrant reversal, and is
without legal effect in the appellate review process. Similarly, we find no legal error or abuse of
discretion in the trial court’s division of property
acquired during the marriage, or in its valuation
of same. AFFIRMED. Opinion from the Court of
Civil Appeals, Division II by Thornbrugh, P.J.;
Rapp, J., and Barnes, J., concur.
114,085 — Loretta Mills-Boyd, Petitioner, vs.
City of Tulsa and The Workers’ Compensation
Court of Existing Claims, City of Tulsa (Own
Risk #10435), Insurance Carrier. Proceeding to
Review an Order of a Three-Judge Panel of the
Workers’ Compensation Court of Existing
Claims, Hon. Michael W. McGivern, Trial
Judge. Claimant seeks review of a panel that
affirmed the trial court’s denial of benefits. The
facts are undisputed that Claimant was on an
authorized, paid break, on her way to obtain
food with which to take prescribed medication,
when she tripped on an uneven tile and fell.
Employer does not dispute Claimant’s contention that both the food and the medicine were
needed for Claimant to properly perform her
job. The precipitating risk of harm was the
uneven tile located just outside an elevator
door that em-ployees used to exit the building,
to reach other areas of the building where
work-related functions were performed, or, in
Claimant’s case on the day in question, to reach
a café to obtain something to eat. It is undisputed that Employer owned, controlled, and
maintained the area where Claimant fell. We
find that the activities and conditions presented were sufficiently related to Claimant’s
employment to establish that her injury arose
out of and occurred in the course of her
employment. On de novo review of the undisputed facts, we find the panel erred in affirming the trial court’s denial of benefits to Claimant on grounds that she did not sustain a
compensable injury. The panel’s decision is
vacated, and this matter remanded for further
proceedings consistent with this opinion.
VACATED AND REMANDED FOR FURTHER
PROCEEDINGS. Opinion from Court of Civil
Appeals, Division II by Thornbrugh, P.J.; Rapp,
J., and Barnes, J., concur.
114,358 — In the Matter of J.W. and L.W.,
Alleged Deprived Children: Travis Whitmer,
1136
Appellant, vs. State of Oklahoma, Appellee.
Appeal from an Order of the District Court of
Cleveland County, Hon. Stephen Bonner, Trial
Judge, adjudicating Father’s two children deprived as to Father. The record contains competent evidence supporting the trial court’s
finding that Children are deprived on the
grounds alleged by State. Father’s defense was
based in large part on attacking the credibility
of his daughter J.W. On matters of witness
credibility, this Court gives great deference to
the trial court, which in this case specifically
noted its consideration of witness credibility in
reaching its decision. Moreover, J.W.’s testimony was believed by four witnesses for State,
and Child’s Mother stipulated to the allegations of State’s petition. We further find the
trial court did not abuse its discretion in
excluding certain evidence, the substance of
which Father was able to inject into the proceedings through his cross examination of
State’s witnesses. Accordingly, the judgment is
affirmed. AFFIRMED. Opinion from the Court
of Civil Appeals, Division II by Thornbrugh,
P.J.; Rapp J., and Barnes, J., concur.
114,133 — In the Matter of: B.D.H., C.D.H.,
P.M.H., and K.S.H., Alleged Deprived Children. Kenneth B. Hopper, IV and Anna M.
Hopper, Appellants, vs. State of Oklahoma,
Appellee. Appeal from an Order of the District
Court of Oklahoma County, Hon. Susan K.
Johnson, Trial Judge, entering judgment on a
jury verdict that terminated the parental rights
of Parents to their four children. Parents’ three
oldest Children were taken into protective custody by the Department of Human Services
after Parents and Children were found in the
parking lot of a convenience store without food
and shelter, and Parents admitted they had
used drugs and been physically abusive in
Children’s presence. Parents’ fourth child was
born addicted to opiates, and, after Parents
made little progress on their treatment plan,
State sought termination for failure to correct
conditions. Parents did not appear for either
day of a two-day trial after they were instructed by the court to appear. They also failed to
comply with the court’s order, on the day
before trial, to consult with their counsel for
purposes of preparing for trial and assisting in
the defense against termination. State proved
by clear and convincing evidence that Parents
failed to correct the conditions leading to Children’s deprived adjudication, that termination
is in Children’s best interests, and that Parents
were reasonably informed of the conduct
Vol. 87 — No. 15 — 5/28/2016
required for them to correct the conditions that
led to Children’s deprived adjudication. The
petition to terminate, jury instructions, and
verdict forms properly reflect the conditions
Parents failed to correct, but the trial court
failed to list these conditions in its journal
entry of judgment, as required by In re T.T.S.,
2015 OK 36, __ P.3d __ (mandate issued 07-142015). Accordingly, while the judgment is
affirmed, we remand with instructions to the
trial court to take such actions as are necessary
to correct the deficiencies in its final journal
entry. AFFIRMED AND REMANDED WITH
INSTRUCTIONS. Opinion from the Court of
Civil Appeals, Division II by Thornbrugh, P.J.;
Rapp, J., and Barnes, J., concur.
113,023 — Chris Poindexter, Plaintiff, and
Pridex Construction, LLC, Plaintiff/Appellant/Cross Appellee, vs. Jack Stuteville, Defendant/Appellee/Cross Appellant, and TMC
Construction Company, Inc., Richard Reynolds, The Underwriters Group, Inc., Larry G.
Wright and City of Kingfisher, Defendants.
Appeal from Order of the District Court of
Kingfisher County, Hon. Paul K. Woodward,
Trial Judge, denying JNOV but granting a new
trial in favor of Defendant Jack Stuteville, following a jury verdict awarding actual and
punitive damages in Plaintiff’s favor. Upon an
exhaustive review and analysis of the record,
the trial court’s findings, and the Defendant’s
trial court motions for JNOV and for new trial,
as well as the parties’ appellate briefs, this
Court finds no correctable error of law that
would warrant the lower court’s grant of a new
trial. The matter was tried to a jury that reached
a unanimous verdict. A motion for new trial
invokes the power of the trial court to correct
and cure the court’s own errors, but does not
invoke the power to examine the parties’
respective decisions and strategies in presenting their cases. Nor is it a ground for new trial
that the jury would have come to a different
decision had the parties conducted the trial differently. The fact that an identical trial could
result in a different result does not render this
jury’s verdict erroneous, or show an error of
law. We find no objective evidence of an error
by the court in this trial, nor did the court err in
its denial of JNOV. It is the duty of the trial
court to safeguard the rights of both the litigants to a fair trial. We find that it did so in this
case. We therefore reverse the grant of a new
trial and reinstate the jury verdict in this case.
Vol. 87 — No. 15 — 5/28/2016
REVERSED. JURY VERDICT REINSTATED.
Opinion from the Court of Civil Appeals Division II, by Thornbrugh, P.J.; Barnes, J., concurs,
and Rapp, J., dissents.
113,545 — Leslie Denise Roberson, Petitioner/Appellee, vs. Charles Darren Roberson,
Respondent/Appellant. Appeal from Order of
the District Court of McClain County, Hon.
Charles Gray, Trial Judge. The Respondent,
Charles Darren Roberson (husband), appeals
portions of the property and debt division provisions in a Decree of Dissolution of Marriage
in an action brought by the Petitioner, Leslie
Denise Roberson (Wife). The trial court heard
conflicting evidence and resolved the issues
based upon the evidence. The trial court is
entitled to choose which testimony to believe
as the judge has the advantage over this Court
in observing the behavior and demeanor of the
witnesses. The court’s judgment need not rest
upon uncontradicted evidence. Husband has
not shown that the trial court in any manner
abused its discretion or that the decision is contrary to the clear weight of the evidence or law.
Therefore, the judgment is affirmed. AFFIRMED. Opinion from Court of Appeals,
Division II by Rapp, J.; Thornbrugh, P.J., and
Barnes, J., concur.
114,633 — Freddie M. Johnson, an individual, Plaintiff/Appellant, v. State of Oklahoma
Parole Board Members, Vanessa Price, Patricia
High, Robert Macy, Thomas Gillert, Defendants/Appellees. Appeal from an Order of the
District Court of Oklahoma County, Hon. Don
Andrews, Trial Judge, granting Defendants’
summary judgment as a matter of law. Plaintiff
first argues he was denied a “State Constitutional parole hearing” because the Board consisted of only four members at the time of his
parole hearing. Here, the Board had four votes
out of a possible five votes in favor of denying
Plaintiff’s parole request; clearly a majority
vote as required by the Oklahoma Constitution. Even if the fifth Board position was not
vacant at the time of Plaintiff’s parole hearing
and had voted in favor of Plaintiff’s request,
the Board would still have a majority vote to
deny Plaintiff parole. This Court finds Plaintiff’s alleged error to be without merit. Plaintiff
next raises several issues concerning the mechanisms of the Oklahoma parole process. Here,
Plaintiff has asserted he was deprived of a
constitutionally-protected liberty interest. The
Oklahoma Supreme Court has held there is no
1137
constitutionally-protected liberty interest in
parole. This Court finds no error. This Court
finds the trial court did not err in granting
Board’s summary judgment motion. The trial
court’s Order is affirmed. AFFIRMED. Opinion
from Court of Civil Appeals, Division II, by
Rapp, J.; Thornbrugh, P.J., and Barnes, J., concur.
114,053 — In the Matter of E.M.V. and J.M.V.,
Alleged Deprived Children: Tammy Vasek, Appellant, v. State of Oklahoma, ex rel. Department of Human Services, Appellee. Appeal
from a Judgment of the District Court of Noble
County, Hon. Nikki G. Leach, Trial Judge. In
this termination of parental rights case, Appellant (Mother) appeals from a Judgment in
which the trial court accepted the jury’s verdicts that Mother failed to meet the conditions
that led to the deprived adjudication as to both
E.M.V. and J.M.V. (the Children) and terminated Mother’s parental rights. Mother argues the
Judgment should be reversed and new trial
granted because she was denied her due process rights to a fair trial, Appellee (State) failed
to present clear and convincing evidence that
she failed to meet the conditions that needed to
be corrected, and she was denied the effective
assistance of counsel. We conclude Mother was
not denied her due process rights to a fair trial
or to the effective assistance of counsel, and we
conclude State proved by clear and convincing
evidence that Mother failed to correct the conditions leading to the deprived adjudication
and that it is in the Children’s best interests
that Mother’s parental rights be terminated.
Consequently, we affirm the Judgment. AFFIRMED. Opinion from Court of Civil Appeals,
Division II, by Barnes, J.; Thornbrugh, P.J., and
Rapp, J., concur.
113,540 — In re the Marriage of: Heather
Dawn Hillian, now Campbell, Petitioner/Appellant, v. Paul Douglas Hillian, Respondent/
Appellee. Appeal from an Order of the District
Court of Oklahoma County, Hon. Barry L.
Hafar, Trial Judge, granting sole custody of the
minor child, H.H., to Father and dividing the
marital debt in this divorce action. Mother first
argues that the trial court’s conduct at trial
deprived her of Due Process of Law by precluding her of the opportunity for a full and
fair hearing before an impartial tribunal. A trial
court is entitled to discretion in monitoring
their own processes. This Court will not
attempt to control the trial court’s exercise of
its discretion in conducting a trial as long as
1138
there is not an abuse of discretion. Here, the
trial court’s actions were not arbitrary, unreasonable or an abuse of descretion and will not
be disturbed. After a thorough review of the
appellate record, including the transcripts of
the three day trial, this Court finds the trial
court’s decision awarding sole custody of the
minor child, H.H., to Father was not an abuse
of discretion or clearly contrary to the evidence
presented at trial. This Court also finds the trial
court did not abuse its discretion in finding the
debt a marital debt and ordering Mother and
Father to be jointly and severally liable. This
Court finds the trial court did not err and the
trial court’s decision is affirmed. AFFIRMED.
Opinion from Court of Civil Appeals, Division
II, by Rapp, J.; Thornbrugh, P.J., and Barnes, J.,
concur.
111,776 — State of Oklahoma, ex rel., Department of Transportation, Plaintiff/Appellant, v.
Pecan Properties, Inc., an Oklahoma Corporation, Defendant/Appellee, and Valley National
Bank, and the Tulsa County Treasurer, Defendants. Appeal from an Order of the District
Court of Tulsa County, Hon. Mary Fitzgerald,
Trial Judge. The plaintiff, State of Oklahoma, ex
rel. Department of Transportation (ODOT), appeals an Order overruling its motion for new
trial after a judgment in eminent domain was
entered in favor of the defendants, Pecan Properties, Inc. (Pecan) and its mortgagee, Valley
National bank (Bank). Pursuant to a supplemental petition-in-error, ODOT also appeals
the attorney fee award to Pecan. The conclusions and opinions of the parties regarding the
amount of just compensation and their evidence were in conflict. The trial court gave
OUJI 25.3 which instructed the jury on the
issue of damages to the remaining property
after a partial taking and the Instructions, as a
whole, correctly informed the jury. When there
is any evidence, though conflicting, reasonably
tending to support the jury’s verdict the judgment will not be disturbed on appeal. As a
result of the verdict, Pecan became entitled to
an attorney fee actually incurred. Pecan and its
counsel had a contingency fee contract calling
for a fifty percent fee calculated from the difference between the last ODOT offer and the verdict. The trial court first determined the extent
of Pecan’s contractual obligation to its counsel.
Next, the trial court considered whether the
quantum of the fee obligation is reasonable
and determined from the conflicting evidence
Vol. 87 — No. 15 — 5/28/2016
that it was reasonable. The determination is
supported by the evidence and is not contrary
to law. Therefore, the trial court’s denial of
ODOT’s motion for new trial is affirmed. The
attorney fee and costs award is affirmed.
AFFIRMED. Opinion from Court of Civil
Appeals, Division II, by Rapp, J.; Goodman, C.J.
(sitting by designation), and Barnes, J., concur.
114,808 — James Sparks, Plaintiff/Appellant,
v. Harlan E. Yocham, an individual, and Harlan
E. Yocham II, Affiliates, LLC, a Domestic Limited Liability Company (d/b/a Chieftain Pride
Car Wash), Defendants/Appellees. The plaintiff, James Sparks (Sparks), appeals an Order
granting summary judgment to the defendants, Harlan E. Yocham, II (Yocham) and Harlan E. Yocham, II Affiliates, LLC. (HEY). The
facts are generally not disputed. HEY is the
owner and operator of a car wash. Yocham is a
member of HEY limited liability company.
Sparks was a customer at the time of the incident leading to this action. The weather was
below freezing on the day Sparks went to HEY
to wash his vehicle. After washing the vehicle
in a self-service wash bay, Sparks drove out of
the wash bay and his vehicle became ice bound
in a depression. Sparks twice exited his vehicle
in order to move it from the ice with assistance
from a Hey employee. On one of the two exits,
he unsuccessfully tried to use a shovel to break
the ice. On a third try, Sparks exited his vehicle
and slipped on the ice and sustained injury.
Sparks admits that he had seen ice there on a
previous occasion. He further conceded that he
knew the ice was present on the day he was
injured and that its presence was “open and
obvious.” Under the facts of the case as developed by the summary judgment record, including the fact that the ice condition is admittedly
“open and obvious,” this Court concludes that
the ice hazard at the HEY car wash was an
“open and obvious” hazard and controlled by
ordinary care. Sparks was actually aware of the
hazard and assisted in creating it. No act attributable to HEY creating a greater hazard than
that brought about by dangers created by natural causes has been shown. Therefore, summary judgment was proper as to the defendant
HEY. For the same reasons, summary judgment was proper as to Yocham individually.
Therefore, the trial court’s Order granting summary judgment is affirmed. AFFIRMED. Opinion from Court of Civil Appeals, Division II, by
Rapp, J.; Thornbrugh, P.J., and Barnes, J., concur.
Vol. 87 — No. 15 — 5/28/2016
Monday, May 16, 2016
114,237 — In the Matter of the Adoption of:
M.A.S., a Minor Child. Michael Cruce, Appellant, v. Stephen Cullen Asbell, Appellee. Appeal
from the District Court of Creek County, Hon.
Richard Woolery, Trial Judge. Appellant (Father), the natural father of M.A.S., appeals the
Order of the trial court in which the court sustained the application by Appellee (Asbell), the
step-father of M.A.S., that M.A.S. is eligible for
adoption without Father’s consent and that it
is in M.A.S.’s best interest that adoption proceedings continue. Though the evidentiary
record in this case is sparse, we conclude the
trial court’s determination that Father failed to
substantially comply with court-ordered child
support during the relevant period and that his
failure to pay child support was willful is not
against the clear weight of the evidence. We
further conclude Father was not prevented
from maintaining a substantial and positive
relationship with M.A.S. during the relevant
period though his visitation had been changed
from unsupervised to supervised visitation.
Here, as the trial court noted, some obstacles
were interposed to make maintaining a relationship with M.A.S. difficult; however, the
evidence clearly and convincingly demonstrates the trial court had established parameters whereby visitation could occur but Father
did not take advantage of those opportunities
and, instead, chose to have no contact at all
with M.A.S. during the relevant period. Because Father was not denied the opportunity to
maintain a substantial and positive relationship during the relevant period, the conditions
set forth in 10 O.S. 2011 § 7505-4.2(H)(2) did not
arise. We, therefore, conclude the trial court
properly determined that Father failed to exercise parental rights pursuant to 10 O.S. 2011 §
7505-4.2(B)(1) and (H)(1), that the adoption of
M.A.S. may be granted without Father’s consent, and that it is in M.A.S.’s best interests that
she be determined to be eligible for adoption
without Father’s consent. Accordingly, we affirm the Order. AFFIRMED. Opinion from Court
of Civil Appeals, Division II, by Barnes, J.;
Thornbrugh, P.J., concurs, and Rapp, J., dissents.
(Division No. 3)
Wednesday, April 27, 2016
113,289 — Rural Water, Sewer and Solid
Waste Management District No. 1, Logan
County, Oklahoma, an agency and legally constituted authority of the State of Oklahoma,
Plaintiff/Appellant, vs. City of Guthrie, an Ok-
1139
lahoma Municipality and The Guthrie Public
Works Authority, a public trust, Defendants/
Appellees. Appeal from the District Court of
Logan County, Oklahoma. Honorable Phillip
C. Corley, Judge. This is the third appeal originating from the underlying lawsuit. In the first
appeal, this Court affirmed the trial court’s
grant of summary judgment to Appellees
(Guthrie), in the action of Appellant (Logan-1),
which sought to compel Guthrie’s sale of treated water to Logan-1. In a companion appeal,
Case No. 110,456, this Court affirmed in part,
reversed in part and remanded for further proceedings the trial court’s order granting attorney fees and costs to Guthrie emanating from
the underlying action. The trial court held
Guthrie was entitled to attorney fees for
defending against one of Logan-1’s two theories of recovery, and it awarded Guthrie
$286,728.00 in attorney fees and $3,735.10 in
costs. On appeal, this Court affirmed the original fee and cost award, but held Guthrie was
also entitled to attorney fees for defending
against Logan-1’s second theory of recovery.
We further ruled the trial court erred in calculating Guthrie’s paralegal pay rate. The case
was remanded for determination of the appropriate fee award for Guthrie’s defense of the
second theory of recovery and for recalculation
of the paralegal pay rate. Logan-1’s petitions
for certiorari review of both appellate decisions
were denied by the Oklahoma Supreme Court
in unpublished orders filed February 18, 2014.
Guthrie then moved the Supreme Court for
appeal- and certiorari-related attorney fees.
Logan-1 argued the underlying attorney fee
award was void because Guthrie failed to comply with 62 O.S. 2011 §§362 and 363, and the
amount of the judgment exceeded the maximum statutory liability of a governmental entity under the Governmental Tort Claims Act
(GTCA). By unpublished orders dated April
14, 2014, the Supreme Court implicitly rejected
Logan-1’s objections when it granted Guthrie’s
motion for appeal- and certiorari-related attorney fees. The Supreme Court’s order authorized the trial court to determine the amount of
such fees on remand. This appeal concerns the
court’s rulings on remand. Logan-1 did not
mention the GTCA or its liability cap in any
pleading until after this Court’s earlier decisions were handed down and certiorari was
denied. The GTCA’s liability limitations and
collection provisions do not apply here. Any
suggestion by Logan-1 that the original attorney fee and cost award is subject to a new
1140
attack is rejected. The amounts awarded in the
original judgment are final and unappealable.
We also reject Logan-1’s related argument that
Guthrie violated 12 O.S. 2011 §990.3(A) by
executing on the mandated attorney fee award
three days after the trial court’s September 15,
2014 order. The award was affirmed on appeal
and mandated. We find no error. Logan-1’s
argument regarding 12 O.S. 2011 §990.5 is also
unpersuasive. Logan-1 erroneously contends
Silver Creek Investments, Inc. v. Whitten Constr.
Mgmt., Inc., 2013 OK CIV APP 49, 307 P.3d 360,
established a new standard for consideration
of attorney fee contracts, namely that the attorney fee award cannot exceed the fee actually
incurred, absent unusual circumstances. The
Silver Creek opinion made no such pronouncement. The trial court’s attorney fee award was
not limited to the fee contract between Guthrie
and its counsel. Accordingly, the judgment of
the trial court is AFFIRMED. Opinion by Bell,
P.J.; Joplin, J., and Hetherington, J., concur.
113,782 — The Key Finance, Inc., Plaintiff/
Appellant, vs. Michael Gravitt, Defendant/
Appellee. Appeal from the District Court of
Oklahoma County, Oklahoma. Honorable
Patricia Parrish, Judge. Key Finance, Inc., Plaintiff/Appellant, seeks review of the trial court’s
ruling denying Key’s motion to compel arbitration. This dispute relates to the June 22, 2012
purchase of a vehicle from The Key Cars by
Michael Gravitt, Defendant/Appellee. The
trial court found by order on March 6, 2015,
Key Finance waived any right it might have
had to arbitrate the dispute. In addition, the
trial court found the arbitration agreement was
ambiguous. On June 22, 2012, Gravitt purchased a 2005 Jeep Wrangler from The Key Inc.
(d/b/a The Key Cars). At the time of purchase,
Gravitt signed a separate arbitration agreement with the seller listed as “The Key Finance,
Inc.” in the arbitration agreement. Several
months after Gravitt’s purchase, Key instituted
repossession of the vehicle. It was sold at auction, after which The Key Finance, Inc. filed
suit (January 7, 2014) in Oklahoma County
District Court to collect a deficiency judgment
for the balance of the contract. On November 3,
2014, Gravitt filed a petition to vacate the judgment, citing the lack of due diligence in the
attempt to properly serve him with notice of
the deficiency action. The June 2014 judgment
was vacated and Gravitt filed an answer and
counterclaim to the Key Finance petition on
November 20, 2014. Gravitt submitted discovery requests on Key Finance on November 18,
Vol. 87 — No. 15 — 5/28/2016
2014. On January 26, 2015, after having received
no response to his discovery requests, Gravitt
filed a motion to compel discovery. On February 5, 2015, in response to Gravitt’s motion to
compel, Key Finance filed a motion to compel
arbitration. An order granting or denying a
motion to compel arbitration is an appealable
order. 12 O.S. 2011 §1879(A); Oklahoma Oncology & Hematology P.C. v. U.S. Oncology, Inc., 2007
OK 12, ¶17, 160 P.3d 936, 942-43; Willco Enter.
L.L.C. v. Woodruff, 2010 OK CIV APP 18, ¶12,
231 P.3d 767, 772. Key first asserts it did not
waive the right to arbitrate the dispute. The
trial court’s determination that a party waived
the right to compel arbitration is a mixed question of law and fact. Willco Enter., L.L.C. v.
Woodruff, 2010 OK CIV APP 18, ¶12, 231 P.3d
767, 772. Key filed suit against Gravitt, which
has been found to be an action inconsistent
with asserting one’s right to arbitrate. Northland Ins. Co. v. Kellogg, 1995 OK CIV APP 84, ¶5,
897 P.2d 1161, 1162. However, in this case the
arbitration agreement signed by the parties
states “filing suit” does not trigger the waiver
of one’s right to arbitrate the dispute. This language, protecting a party’s right to arbitrate by
expressly permitting the filing of suit, is analogous to arbitration language examined in Willco, 2010 OK CIV APP 18, ¶29, 231 P.3d at 777. In
Willco, the parties’ arbitration agreement specifically stated Willco could file an action in
“foreclosure” and that such an action would
“not be inconsistent with its contractual right
to arbitrate.” Id. Waiver of the right to arbitrate
a dispute “is not easily inferred” and courts
“should resolve in favor of coverage any
doubts concerning the arbitrability of a particular dispute.” B.A.P., L.L.P. v. Pearman, 2011 OK
CIV APP 30, ¶20, 250 P.3d 332, 340 (citing
Willco, 231 P.3d at 772; and Northland, 897 P.2d
at 1162). In light of these precepts and the holding in Willco, wherein similar language preserving the right to arbitration was at issue, we
find Key Finance did not waive its right to seek
arbitration by filing suit against Gravitt. The
trial court’s second finding determined “paragraph number 6 creates an ambiguity.” The
delegation provision in the arbitration agreement dictates that the arbitrator has the authority to decide if any portion of the arbitration
agreement is ambiguous. Rent-A-Center, West,
Inc., v. Jackson, 561 U.S. 63, 130 S.Ct. 2772 (2010).
Based on the U.S. Supreme Court’s ruling in
Rent-A-Center and the operation of the F.A.A.,
9 U.S.C. §§2 - 4 as discussed therein, the delegation provision in the Key-Gravitt arbitration
Vol. 87 — No. 15 — 5/28/2016
agreement effectively granted to the arbitrator
the authority to determine whether or not
paragraph six was ambiguous. The order of
the trial court denying Plaintiff/Appellant’s
motion to compel arbitration is REVERSED
and this cause REMANDED. Opinion by Joplin, J.; Bell, P.J., and Hetherington, J., concur.
114,144 — In the Matter of P.B. and M.O., Children Under 18 Years of Age: Crystal Orange,
Appellant, vs. State of Oklahoma, Appellee.
Appeal from the District Court of Tulsa County,
Oklahoma. Honorable Doris Fransein, Judge.
Mother seeks review of the trial court’s order,
entered after a non-jury trial terminating her
parental rights in and to B.P. and M.O., Children Under 18 Years of Age (Children), upon
the determination of her failure to correct the
conditions leading to the adjudication of Children as deprived. In this appeal, Mother asserts
(1) Appellee State of Oklahoma (State) sought
termination, inter alia, upon a statutory ground
not in effect, and (2) the trial court did not consider her mental impairment in the adjudication of her failure to correct conditions. Section
1-4-904(B)(15) of title 10A, O.S., permitting termination on account of a child’s placement in
foster care for 15 of the preceding 22 months,
became effective November 1, 2013, prior to
filing of the motion to terminate in May 2014.
The trial court terminated Mother’s parental
rights for her failure to correct conditions
under 10A O.S. §1-4-904(B)(5), not pursuant to
§1-4-904(B)(15). In reaching its conclusion to
terminate Mother’s parental rights and considering the results of Mother’s mental health
assessment, specifically found Mother did not
suffer from a cognitive disability that would
affect or interfere with her ability to comply
with the court’s orders and directions. The
order of the trial court terminating Mother’s
parental rights is free of legal error and supported by clear and convincing evidence.
AFFIRMED. Opinion by Joplin, J.; Bell, P.J., and
Hetherington, J., concur.
114,269 — Ferguson Brothers Construction,
LLC, Plaintiff/Appellant, vs. Jacob Townsend,
Nancy Townsend, Defendants. Appeal from
the District Court of Lincoln County, Oklahoma. Honorable Cynthia Ashwood, Judge.
Appellant appeals from the trial court’s order
granting the motion to dismiss of Appellees. The
trial court found Appellant failed to demonstrate any material facts remained in dispute.
Appellees contracted with Appellant regarding
the construction of their home. The parties dis-
1141
agreed about the costs and progress of construction. On March 15, 2014, Appellant billed Appellees for additional work done under the contract
for which it had not received payment. No
additional work was performed after that date.
Appellees sued Appellant in small claims court
asserting breach of contract because Appellant
failed to perform the work for which it had
already received payment. Judgment was
entered in favor of Appellees. Appellant then
filed a lien against Appellees’ home contending the lien was based on work done pursuant
to the contract. Over a year later, Appellant
filed suit seeking to foreclose the lien. Appellees filed a motion to dismiss, arguing Appellant is barred from bringing this claim because
it represented a compulsory counterclaim that
should have been asserted in the small claims
case. The court granted Homeowners’ motion
to dismiss and ordered Appellant to release the
lien within ten days. A de novo review of the
record reveals Appellant failed to demonstrate
any material issue of controverted fact. Appellant’s asserted claim is a compulsory counterclaim and is barred under Oklahoma law. The
trial court’s order granting Homeowners’
motion to dismiss is AFFIRMED. Opinion by
Bell, P.J.; Joplin, J., and Hetherington, J., concur.
Monday, May 2, 2016
113,560 — Emilee Anne Mullendore, Petitioner, vs. Mercy Hospital Ardmore and The
Workers’ Compensation Commission, Respondents. Proceeding to Review an Order of the
Workers’ Compensation Commission En Banc.
Petitioner seeks review of an order of the
Workers’ Compensation Commission En Banc
which affirmed the decision of an administrative law judge to deny her compensation for an
injury to her right knee allegedly arising out of
and in the course of her employment with
Respondent. In this review proceeding, Petitioner challenged the decision of the Commission as contrary to law, the clear weight of the
evidence, and violating her constitutional
guarantee of an adequate remedy for a wrong.
Having reviewed the testimony and evidence,
we cannot say the conclusion of the administrative law judge, affirmed by a unanimous Workers’ Compensation Commission En Banc, is so
clearly erroneous in view of the reliable, material, probative and substantial competent evidence from Respondent’s examining physician,
who attributed the sole cause of Petitioner’s fall
to an idiopathic condition, as to warrant our appellate intervention. Denial of Petitioner’s claim
1142
for compensation was not based on some statutory change which impermissibly deprived her
of a remedy for her job-related injury available
under prior law. Rather, denial of her claim was
based on a determination by the administrative
law judge that she failed to demonstrate the
statutory grounds for an award of compensation. Because we discern no violations in the
present case, we decline the invitation to address
the constitutional issues raised. AFFIRMED.
Opinion by Joplin, J.; Bell, P.J., and Hetherington, J., concur.
113,609 — Rodney Stanley Brown, Petitioner,
vs. Claims Management Resources, Inc., Hartford Accident and Indemnity Co., and The
Workers’ Compensation Commission, Respondents. Proceeding to Review an Order of the
Workers’ Compensation Commission En Banc.
Petitioner seeks review of an order of the
Workers’ Compensation Commission En Banc
which affirmed the order of an administrative
law judge denying his claim for compensation
for an injury to his left knee allegedly arising
out of the course and scope of his employment
with Respondent. In this proceeding, Petitioner asserted the definition of “compensable
injury,” which excludes “any injury occurring
in a parking lot or other common area adjacent
to an employer’s place of business before the
employee clocks in or otherwise begins work
for the employer or after the employee clocks
out or otherwise stops work for the employer,”
was arbitrary and capricious, and violated
public policy. Petitioner also asserted denial of
compensation deprived him of an adequate
remedy guaranteed by the Oklahoma Constitution, and violated the public policy basis
underlying workers’ compensation law. The
evidence demonstrated Petitioner suffered an
injury in the common area of a stairwell after
he clocked out for the day. There is thus substantial evidence supporting the conclusion of
the administrative law judge, affirmed by the
Workers’ Compensation Commission En Banc,
that Petitioner did not prove a compensable
injury in the course and scope of his employment. Petitioner was not deprived of an adequate remedy. AFFIRMED. Opinion by Joplin,
J. Hetherington, J., concurs; Bell, P.J., dissents.
114,576 — Glenda Leah Joyner, as Trustee of
the Lillian R. Johnson Revocable Trust, Plaintiff/Appellant, vs. Kelly Dale Fraser, Defendant/Appellee. Appeal from the District Court
of Tulsa County, Oklahoma. Honorable Mary
Fitzgerald, Judge. Appellant seeks review of
Vol. 87 — No. 15 — 5/28/2016
the trial court’s order granting summary judgment to Appellee in Appellant’s action for
fraud, breach of contract and for the imposition
of a constructive trust. The trial court found
Appellant failed to demonstrate she was the
real party in interest to prosecute this action on
behalf of the Trust. The real party in interest
rule is designated to protect the defendant by
insuring that the party with the legal right to
sue brings the action. The question on appeal is
whether Appellant’s affidavit constitutes sufficient evidence to oppose summary judgment.
We hold it does not. The record on appeal is
sparse. Appellant had the responsibility to
include in the appellate record all materials
necessary to secure corrective relief. Appellee’s
motion to strike, which was deferred to the
decisional stage, is denied. The trial court’s
summary judgment in favor of Appellee is
AFFIRMED. Opinion by Bell, P.J.; Joplin, J., and
Hetherington, J., concur.
Friday, May 6, 2016
113,911 — Checotah Partners, L.L.C., an Oklahoma Limited Liability Company, and ONAPA
Gas Company, L.L.C., an Oklahoma Limited
Liability Company, Plaintiffs/Appellees, vs. Oklahoma Petroleum, Inc., an Oklahoma Corporation, Defendant/Appellant. Appeal from the
District Court of McIntosh County, Oklahoma.
Honorable Jim Pratt, Judge. Appellant/Defendant, Oklahoma Petroleum, Inc., seeks review
of the trial court’s order denying Defendant’s
motion to reconsider and motion to vacate an
earlier order granting a default judgment in
favor of Plaintiffs/Appellees, Checotah Partners, L.L.C. and ONAPA Gas Company, L.L.C.
The trial court initially granted Plaintiffs/
Appellees a default judgment by order filed
December 11, 2014, finding Defendant’s answer
to the petition was due no later than October
26, 2014. Defendant’s answer was filed on November 6, 2014. In the appealed from order
denying the motion to reconsider and motion
to vacate the default judgment, the trial court
found Defendant’s answer was due on October
12, 2014. Defendant was served via the Secretary of State; the summons was mailed on
August 29, 2014, it was received by the Secretary of State’s Office on September 2, 2014 and
the Secretary’s office issued a “Certificate of
Proof of Service” on September 8, 2014. The
Defendant filed a reservation of time on September 22, 2014, pursuant to 12 O.S. Supp.2004
§2012(A)(1)(b). We found the trial court erred
and Defendant’s answer was timely, as the
Vol. 87 — No. 15 — 5/28/2016
summons and petition were not filed with the
Secretary of State until September 8, 2014,
when the Secretary’s office acknowledged
acceptance of the summons and petition, issuing the “Certificate of Proof of Service.” From
this service date, Defendant had forty days in
which to answer the petition, and then an additional twenty days due to the reservation of
time filed by Defendant on September 22, 2014.
12 O.S. Supp.2012 §2004(C)(4)(d); 12 O.S.
Supp.2004 §2012(A)(1)(b). The order of the trial
court denying Defendant/Appellant’s combined motion to reconsider and motion to vacate the order granting the default judgment is
REVERSED and this cause is REMANDED for
further proceedings. Opinion by Joplin, J.; Bell,
P.J., and Hetherington, J., concur.
114,173 — F&M Bank, an Oklahoma State
Banking Corporation, Plaintiff/Appellee, vs.
Fall Creek Development, L.L.C., Cambria Estates, L.L.C., Landmark Center, Inc., Oak Meadow Farms, L.L.C., Larry D. Owsley, E. Kay Owsley, Defendants/Appellants, and Frontier State
Bank, Forrest “Butch” Freeman, County Treasurer of Oklahoma County, Oklahoma, and The
Board of County Commissioners of Oklahoma
County, Oklahoma, Defendants. Appeal from
the District Court of Oklahoma County, Oklahoma. Honorable Bryan C. Dixon, Judge. This is
an action to recover damages for the breach of
three promissory notes and to foreclose upon
certain mortgages, guaranties and security
interests securing said promissory notes. Appellants (Fall Creek, Cambria, Landmark, Oak
Meadow, and the Owsleys) appeal from the
trial court’s order granting summary judgment
to Appellee (Bank). Appellants dispute the
amount of damages awarded by the trial court.
The record does not support Appellants’ argument that there are unresolved factual disputes
as to the amount of damages due under the
Fall Creek Note. Appellants had to demonstrate in what respects Bank’s mathematical
computations were incorrect. Appellants did
not propose the correct figures, not did they
produce any specific factual matters in support
of their contention that Bank’s figures were
incorrect. We hold Bank is entitled to judgment
as a matter of law. The trial court’s summary
judgment in favor of Bank is AFFIRMED.
Opinion by Bell, P.J.; Joplin, J., and Hetherington, J., concur.
112,753 — CHS Reinsurance Co., Ltd., Plaintiff/Appellant, vs. First Automotive Service
1143
Corporation, a New Mexico corporation, Defendant/Appellee, and Bank of Oklahoma,
N.A., an Oklahoma Banking Association, as
Trustee; Dealers Assurance Company, a Foreign Insurance Company, Defendants, vs.
Southwest Re, Inc., a New Mexico Corporation, Third-Party Plaintiff, vs. CHS Reinsurance Co., Ltd., Third-Party Defendant/Appellant. Appeal from the District Court of Oklahoma County, Oklahoma. Honorable Barbara
G. Swinton, Trial Judge. In this dispute over
trust funds, the grantor, CHS Reinsurance Co.,
LTD (CHS), sued the trustee, Bank of Oklahoma (BOK), and the trust beneficiaries, First
Automotive Service Corporation (FASC) and
Dealers Assurance Company (DAC), seeking
interpretation of a trust and payment of all
trust funds. FASC and DAC counterclaimed
for reimbursement of monies both defendants
claimed were owed to FASC under the reinsurance agreement between CHS and FASC. The
court approved the filing of third party petition
by Southwest Re Inc. (SW Re) and held a bench
trial on all claims. CHS appeals the trial court’s
judgment awarding FASC $63,919.00, ordering
the remaining funds be paid to CHS, and denying the claims of DAC and SW Re. CHS alleges
FASC, DAC and SW Re lacked standing to file
their counterclaims and third party petition
because a non-party paid the advanced payments into the trust. Because the record evidence supports the payments made by the
non-party was in its capacity as FASC’s third
party administrator and that SW Re is the parent company for FASC and the non-party, we
find no error with the trial court’s implied
rejection of CHS’ standing argument. After review of the briefs and the entire record on
appeal, we further conclude the trial court’s
conclusions of law adequately explain the decision. The order filed March 14, 2014 is AFFIRMED UNDER OKLA.SUP.CT.R. 1.202(d).
Opinion by Hetherington, J.; Bell, P.J., and
Joplin, J., concur.
113,518 — Bank of America, N.A., Plaintiff/
Appellee, vs. Carmelina S. Murzello, Defendant/Appellant, and The Heirs, Personal Representatives, Devisees, Trustees, Successors
and Assigns of Raymond J. Murzello, Deceased,
the Unknown Successors, John Doe, Spouse of
Carmelina S. Murzello, if married, Occupants
of the Premises and State of Oklahoma, ex rel.
Oklahoma Tax Commission, Defendants.
Appeal from the District Court of Tulsa County, Oklahoma. Honorable Rebecca Nightingale,
Judge. This appeal arises after the previous
1144
decision in case No. 111,115, in which the trial
court’s grant of summary judgment in favor of
Bank of America, N.A. (the Bank) was affirmed
on appeal; the appellate court in that case
denied Carmelina Murzello’s, Defendant/
Appellant, request that the Bank’s case be dismissed for lack of standing. After the No.
111,115 case was affirmed, the Bank sought
enforcement of the summary judgment and
distribution of the proceeds from the sheriff’s
sale of the Murzello home. The sheriff’s sale
generated $272,000 and the Bank requested
distribution of the proceeds in the amount of
$251,363.73. By order on November 25, 2014,
the trial court awarded the Bank $211,328.73 of
the amount requested. From this order Murzello appealed. The issue of entitlement to an
attorney’s fee, costs, and interest presents a
purely legal question which we review de novo.
Finnell v. Jebco Seismic, 2003 OK 35, ¶7, 67 P.3d
339, 342. After the original Murzello case (case
No. 111,115) was affirmed in May 2014, the
Bank’s motion to disburse the sale proceeds
was set for hearing on November 25, 2014. The
minute entry states the motion for disbursement was granted and an order for the disbursement of funds was entered. However, the
appellate record contains no transcript of the
hearing and none was designated by Appellant
for inclusion in the record on appeal. Oklahoma Supreme Court Rules, 12 O.S., Ch.15, App.1,
Rule 1.64. For this reason, it is unclear what the
trial court considered or failed to consider in
reaching its decision and ordering distribution
of the sheriff’s sale proceeds. “The appellant
bears the undivided responsibility” to present
to the court an appellate record that will demonstrate the errors of the trial court’s decision.
Ray v. Ray, 2006 OK 30, ¶12, 136 P.3d 634, 637.
The appellate record in this case does not provide a sufficient basis to support Appellant’s
propositions of error on appeal. The trial
court’s order of disbursement of funds from
the proceeds of the sheriff’s sale is AFFIRMED.
Opinion by Joplin, J.; Bell, P.J., and Hetherington, J., concur.
113,268 — Independent School District No. 5
of Tulsa County, Oklahoma, Plaintiff/Appellant/Counter-Appellee, vs. Patrick L. Taylor
and Marshaleta Taylor, Husband and Wife,
Defendants/Appellees/ Counter-Appellants,
and Communication Federal Credit Union;
Board of County Commissioners of Tulsa
County, and Dennis J. Semler, as Treasurer of
Tulsa County, State of Oklahoma, Defendants.
Appeal from the District Court of Tulsa Coun-
Vol. 87 — No. 15 — 5/28/2016
ty, Oklahoma. Honorable Mary Fitzgerald,
Judge. In this condemnation action, Plaintiff/
Appellant/ Counter-Appellee (School) appeals
from the trial court’s order awarding attorney
fees and costs to Defendants/ Appellees/
Counter-Appellants (Landowners). This is the
second appeal in this jury trial case. In Independent Sch. Dist. No. 5 of Tulsa County, Okla. v.
Taylor, 2014 OK CIV APP 40, 324 P.3d 415, the
Court reversed the trial court’s order granting
a new trial with directions to reinstate the judgment memorializing the jury’s verdict. In this
appeal, School contends the trial court improperly relied upon Landowners’ allegedly illegal
contingent fee agreement with their attorneys
in calculating the amount of the attorneys fees
award. School also argues the court improperly
awarded Landowners costs that are not statutorily authorized. Landowners counter-appeal
alleging that in calculating the amount of the
attorneys fee award, the trial court improperly
excluded the $1,000,000.00 value assigned to
the property for billboard lease rentals. We
hold the trial court did not abuse its discretion
in making this reduction. We reverse the trial
court’s award of certain costs which are not
statutorily authorized. AFFIRMED IN PART;
REVERSED IN PART AND REMANDED.
Opinion by Bell, P.J.; Joplin, J., and Hetherington, J., concur.
(Division No. 4)
Thursday, April 28, 2016
112,844 — Crystal Wells, individually and as
Administrator of the Estate of Robert Young,
Deceased, Plaintiff/Appellant, vs. Oklahoma
Roofing & Sheet Metal, L.L.C., and Oklahoma
Roofing & Sheet Metal, Inc., Defendants/
Appellees. Appeal from an order the District
Court of Oklahoma County, Hon. Bryan C.
Dixon, Trial Judge. Plaintiff Crystal Wells, individually and as Administrator of the Estate of
Robert Young, Deceased, (Decedent) appeals
the district court order dismissing her petition
seeking damages from Defendants arising
from the allegedly intentionally tortious death
of its employee, her father, the Decedent. Plaintiff also sought declaratory relief alleging 85
O.S.2001 and Supp.2010, § 12 is unconstitutional. The trial court determined § 12 was
constitutional, that Defendants’ liability was
exclusively governed by Oklahoma’s Workers’
Compensation Act, and pursuant to § 12, dismissed her petition. We conclude Title 85
O.S.2001 and Supp.2010, § 12 singles out employers for special protection from liability by
Vol. 87 — No. 15 — 5/28/2016
narrowing the definition of an intentional tort
used by employees in district court, but permitting a broader definition of intentional tort
to be used by non-employees in district court.
It is therefore a special law and violates our
Constitution. The trial court’s determination to
the contrary is reversed. Because the trial court
found Plaintiff’s allegations sufficient to support the substantial certainty element of the
definition of an intentional tort, we remand the
matter for further proceedings. REVERSED
AND REMANDED FOR FURTHER PROCEEDINGS. Opinion from Court of Civil
Appeals, Division IV, by Goodman, C.J.; Wiseman, P.J., concurs, and Fischer, J., dissents.
114,283 — David Lee Winters, Plaintiff/
Appellee, vs. State of Oklahoma, ex rel. Department of Public Safety, Defendant/Appellant.
Appeal from an order the District Court of
Jackson County, Hon. Clark E. Huey, Trial
Judge. State of Oklahoma, ex rel. Department of
Public Safety (DPS), appeals the district court’s
order reducing by 60 days the mandatory
minimum abstinence period imposed by 47
O.S.2011, § 6-103(A)(4) on Licensee David Lee
Winters’ application for reinstatement of his
driver’s license. DPS’ denial was based on
Licensee’s failure to meet the statutory minimal sobriety requirement. Because DPS had no
discretion except to deny reinstatement, and
simply required Licensee to await the statutorily-irreducible waiting time to lapse before
seeking reinstatement, there was no DPS order
subject to trial court reduction. The trial court
abused its discretion when it applied 47
O.S.2011, § 6-211(I) to change the statutorilyirreducible, minimum waiting period imposed
by § 6-103(A)(4). The trial court’s order is
reversed. REVERSED. Opinion from Court of
Civil Appeals, Division IV, by Goodman, C.J.;
Wiseman, P.J., and Fischer, J., concur.
114,105 — William R. Satterfield, an individual, Plaintiff/Appellant, vs. Boone Smith, a
professional corporation, Defendant/Appellee. Appeal from an order the District Court of
Tulsa County, Hon. Rebecca Brett Nightingale,
Trial Judge. William R. Satterfield (Satterfield)
appeals an order denying his motion for new
trial. Satterfield filed suit against Boone Smith
for legal negligence, asserting he entered into
an attorney-client relationship with an attorney
with Boone Smith to represent him in a pending federal case. Boone Smith filed a motion for
summary judgment, asserting Satterfield could
1145
not establish a claim for legal negligence. The
trial court ultimately found two elements of
Satterfield’s claim were missing, i.e., no attorney-client relationship and no damages. Satterfield filed a motion for new trial, asserting
error as Boone Smith had acknowledged an
attorney-client relationship. Satterfield did not
challenge the trial court’s remaining finding
regarding damages. Accordingly, although the
trial court erroneously found no attorney-client
relationship, the trial court correctly denied
Satterfield’s motion for new trial because he
was unable to establish another essential element of his legal negligence claim. Boone
Smith was therefore entitled to summary judgment as a matter of law. The order denying
Satterfield’s motion for new trial is therefore
affirmed. AFFIRMED. Opinion from Court of
114,191 (Companion to Case No. 114,190) —
Maxline Construction, LLC, and Bitco General
Insurance Company (FKA) Bituminous Casualty Corp., Petitioners, vs. Tony L. Ridgway,
Respondent, and Integris Baptist Medical Center, Interested Party. Proceeding to review an
order of a three-judge panel of The Workers’
Compensation Court of Existing Claims, Hon.
Margaret A. Bomhoff, Trial Judge. Bitco General Insurance Company, FKA Bituminous
Casualty Co., (Bitco) seeks review of a threejudge panel’s order affirming the workers’
compensation trial court’s order requiring
Bitco to pay Integris Bass Baptist Medical Center (Provider) for medical services provided to
Claimant Tony Ridgway arising from his workrelated injuries. Bitco contends the medical
charges were unreasonable. The trial court
found the charges reasonable and ordered
reimbursement. Based on the evidence presented, the trial court’s order was correct. The
trial court did not err. The three-judge panel’s
order affirming the trial court’s order is likewise correct and is sustained. SUSTAINED.
Opinion from the Court of Civil Appeals, Division IV, by Goodman, C.J.; Fischer, P.J., and
Wiseman, J., concur.
SAC Services and Compsource Mutual Ins. Co.
(f.k.a.) Compsource Oklahoma, Petitioners, vs.
Jaime Moreno Muniz (Deceased), Davalos Ma
Del Refugiuo Demuniz, and The Workers’
Compensation Court of Existing Claims, Respondents, and Integris Baptist Medical Center, Interested Party. Proceeding to review an
1146
order of a three-judge panel of The Workers’
Compensation Court of Existing Claims, Hon.
Margaret A. Bomhoff, Trial Judge. Employer
Sac Services and Insurer Compsource Mutual
Ins. Co., f.k.a. Compsource Oklahoma, seek
review of a three-judge panel order affirming
the workers’ compensation trial court’s order
requiring Insurer to pay Integris Baptist Medical Center (Provider) for medical services rendered to Claimant Jaime Moreno Muniz prior
to his work-related death. Insurer argues the
medical charges were unreasonable. The trial
court disagreed and ordered reimbursement, a
decision later affirmed by a three-judge panel.
We conclude the trial court’s order, based as it
is on the testimony of the parties at the hearing,
was entered correctly. No trial court error
occurred. It follows that the three-judge panel’s
order affirming the trial court’s order is likewise correct and is sustained. SUSTAINED.
Opinion from the Court of Civil Appeals, Division IV, by Goodman, C.J.; Fischer, P.J., and
Wiseman, J., concur.
Tuesday, May 3, 2016
114,490 — In the Matter of J.J., Deprived
Child, Jeremy Jacobs, Appellant, vs. State of
Oklahoma, Appellee. Appeal from an order of
the District Court of Tulsa County, Hon. Doris
Fransein, Trial Judge. Jeremy Jacobs (Father)
seeks review of an order denying his motion to
vacate a consent order terminating his parental
rights to his minor child, J.J., entered after he
failed to appear. After reviewing the record, we
cannot find the trial court abused its discretion
when it determined Father’s incarceration did
not constitute unavoidable casualty or misfortune within the meaning of the statute.
Although Father was in jail, there is nothing in
the record to establish that he could not have
contacted the court or counsel on or prior to
the hearing date. Incarceration, by itself, is not
an unavoidable casualty or misfortune. We
therefore hold that the trial court did not abuse
its discretion in failing to vacate the consent
order. AFFIRMED. Opinion from Court of
112,735 — In Re the Marriage of: Pamela Esk,
now Tate, Petitioner/Appellee, vs. Scott Esk,
Respondent/Appellant. Appeal from the District Court of Cleveland County, Oklahoma.
Hon. Gregory Johnson, Trial Judge. Father
appeals the district court’s order denying his
motion to restore standard visitation with his
children. Although an appellate court may
Vol. 87 — No. 15 — 5/28/2016
examine and weigh the evidence, the trial
court’s decision will not be disturbed unless
found to be against the clear weight of the evidence. In re BTW, 2010 OK 69, ¶ 16, 241 P.3d
199. Based on our review of the record, we find
that the district court’s order denying Father’s
motion to restore unsupervised visitation was
not an abuse of discretion or clearly against the
weight of the evidence. The district court’s
order is affirmed. AFFIRMED. Opinion from
the Court of Civil Appeals, Division IV by
Fischer, J.; Goodman, C.J., and Wiseman, P.J.,
concur.
Friday, May 6, 2016
In the Matter of the Estate of Jimmie Lyons and
Mercy Lyons, Vanessa Calvin, Appellant, vs.
Shirley Ann Lyons, Appellee. Appeal from
orders of the District Court of Comanche
County, Hon. Gerald F. Neuwirth, Trial Judge,
confirming the sale of real property in this
interlocutory appeal involving the administration of Appellant’s father’s estate. The trial
court confirmed the sale finding that the property, as a matter of law, was not and had never
been, part of Mercy’s estate, and her heirs
therefore have no ownership interest in the
property through Mercy’s estate. The property,
which was held in joint tenancy, vested in Jimmie on Mercy’s death and after his death, the
property became part of Jimmie’s estate. The
trial court correctly determined that the property was not part of Mercy’s estate. We conclude the trial court did not abuse its discretion
in confirming the sale of property from Jimmie’s estate, and we affirm the trial court’s
decision. AFFIRMED. Opinion from the Court
of Civil Appeals, Division IV, by Wiseman, P.J.;
Goodman, C.J., and Fischer, J., concur.
In the Matter of the Estate of Jimmie Lyons and
Mercy Lyons, Vanessa Calvin, Appellant, vs.
Shirley Ann Lyons, Personal Representative of
the Estate of Jimmie Lyons, Deceased, Appellee. Appeal from orders of the District Court of
Comanche County, Hon. Gerald F. Neuwirth,
Trial Judge, confirming the sale of personal
property and allowing the final report, final
account, and final decree of distribution in this
interlocutory appeal involving the administration of Appellant’s father’s estate. We must
abide by the presumption that the trial court’s
decision is legally correct and we will not disturb its decision unless it is “clearly contrary to
the weight of the evidence or to some governVol. 87 — No. 15 — 5/28/2016
ing principle of law.” In re Estate of Holcomb,
2002 OK 90, ¶ 8, 63 P.3d 9. Finding no error or
abuse of discretion, we affirm the trial court.
AFFIRMED. Opinion from the Court of Civil
Appeals, Division IV, by Wiseman, P.J.; Goodman, C.J., and Fischer, J., concur.
113,880 — Integrity Factoring & Consulting,
Inc., Plaintiff/Appellant, vs. American Pipe
Bending, Inc., Defendant/Appellee, and Nancy
J. Willis and Northeast CNC, Inc., Defendants.
Tulsa County, Hon. Daman H. Cantrell, Trial
Judge. Integrity Factoring and Consulting, Inc.,
filed this suit to collect an unpaid invoice that
it had been assigned by Northeast CNC, Inc.
The payor, American Pipe Bending, Inc., filed a
motion for summary judgment, which the district court granted. The material facts in this
case are not in dispute. Northeast CNC did not
perform the work covered by the specific
invoice and was not entitled to be paid. Consequently, neither was its assignee, Integrity.
AFFIRMED. Opinion from Court of Civil
Appeals, Division IV by Fischer, J.; Goodman,
V.C.J., and Wiseman, P.J., concur.
114,171 — Integrity Factoring & Consulting,
Inc., Plaintiff/Appellant, vs. American Pipe
Bending, Inc., Defendant/Appellee, and Nancy
J. Willis and Northeast CNC, Inc., Defendants.
Tulsa County, Hon. Daman H. Cantrell, Trial
Judge. Plaintiff Integrity Factoring & Consulting, Inc., appeals the district court’s post-judgment order awarding prevailing party attorney
fees to Defendant American Pipe Bending, Inc.
We find no error in the district court’s determination that Defendant was entitled to an award
of prevailing party attorney fees and costs, and
we affirm that determination. However, with
regard to the amount of the attorney fees
awarded, the district court’s order does not
satisfy the requirements of State ex rel. Burk v.
City of Oklahoma City, 1979 OK 115, 598 P.2d
659. Therefore, the order is reversed, and the
cause is remanded for further proceedings consistent with this Opinion. AFFIRMED IN PART,
REVERSED IN PART AND REMANDED FOR
FURTHER PROCEEDINGS. Opinion from
Court of Civil Appeals, Division IV by Fischer,
J.; Goodman, C.J., and Wiseman, P.J., concur.
112,074 — Robert A. Campbell, Plaintiff/
Appellee, vs. Frac Services, Inc., a dissolved
1147
Corporation; David Gayanich and Salvatore
Ferraro, d/b/a Frac Services, Inc., Defendants/
Appellants. Appeal from the District Court of
Cleveland County, Hon. Tom A. Lucas, Trial
Judge. Frac Services, Inc. (Frac), a dissolved
corporation, and David Gayanich and Salvatore Ferraro, d/b/a/ Frac, appeal the trial
court’s order denying their application for an
attorney’s fee. We find neither Gayanich nor
Ferraro are a prevailing party entitled to an
attorney’s fee under 12 O.S.2011 § 936. That
portion of the order denying their application
for an attorney’s fee is therefore affirmed.
However, Frac is a prevailing party entitled to
fees under § 936. That portion of the trial
court’s order denying Frac’s application for an
attorney’s fee is therefore reversed and the
matter is remanded to the trial court for a redetermination of Frac’s appropriate and reasonable attorney’s fee as prevailing party under §
936 pursuant to this opinion and State ex rel.
Burk v. City of Oklahoma City, 1979 OK 115, 598
P.2d 659, and for determination of an appropri-
ate appeal-related attorney’s fee. AFFIRMED
IN PART, REVERSED IN PART, AND REMANDED FOR FURTHER PROCEEDINGS.
Opinion from the Court of Civil Appeals, Division IV, by Goodman, C.J.; Wiseman, P.J., and
Fischer, J., concur.
ORDERS DENYING REHEARING
(Division No. 1)
Monday, May 2, 2016
113,519 — Brenda Edwards, Petitioner, vs.
Multiple Injury Trust Fund and the Workers’
Compensation Court of Existing Claims, Respondents. Petitioner’s Petition for Rehearing
filed April 14, 2016 is DENIED.
(Division No. 4)
110,926 — Peoplelink, LLC and/or Arch
Insurance Co., Petitioner, vs. Matthew Bear
and the Workers’ Compensation Court, Respondents. Petitioner’s Petition for Rehearing
is hereby DENIED.
NOTICE: DESTRUCTION OF RECORDS
Pursuant to Court Order SCBD No. 3159, the Board of Bar Examiners will destroy the
admission applications of persons admitted to practice in Oklahoma after 3 years from
date of admission.
Those persons admitted to practice during 2012 who desire to obtain their original
application may do so by submitting a written request and $25 processing fee.
Bar exam scores are not included. Requests must be received by August 1, 2016.
Please include your name, OBA number, mailing address, date of admission, and
daytime phone in the written request. Enclose a check for $25, payable to Oklahoma
Board of Bar Examiners.
Mail to: Oklahoma Board of Bar Examiners, PO Box 53036, Oklahoma City, OK 73152.
1148
Vol. 87 — No. 15 — 5/28/2016
CLASSIFIED ADS
SERVICES
OFFICE SPACE
OF COUNSEL LEGAL RESOURCES — SINCE 1992 —
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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@
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BUSINESS VALUATIONS: Marital Dissolution * Estate, Gift and Income Tax * Family Limited Partnerships * Buy-Sell Agreements * Mergers, Acquisitions,
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Appeals and litigation support
Expert research and writing by a veteran generalist
who thrives on variety. Virtually any subject or any
type of project, large or small. NANCY K. ANDERSON, 405-682-9554, [email protected].
Creative. Clear. Concise.
INTERESTED IN PURCHASING PRODUCING &
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Please contact: Patrick Cowan, CPL, CSW Corporation,
P.O. Box 21655, Oklahoma City, OK 73156-1655; 405755-7200; Fax 405-755-5555; email: [email protected].
HANDWRITING IDENTIFICATION
POLYGRAPH EXAMINATION
Board Certified
Diplomate — ABFE
Life Fellow — ACFEI
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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. Dansby, 405-833-2813,
[email protected].
Vol. 87 — No. 15 — 5/28/2016
LUXURY OFFICE SPACE - Two offices for lease, one at
$670 and one at $870 in the Esperanza Office Park near
NW 150th and May in OKC. Lease includes: Fully furnished reception area; receptionist; conference room;
complete kitchen; fax; high-speed internet; building
security; and, free parking. Please contact Gregg Renegar at 405-285-8118.
OFFICE SHARE
OFFICE SPACE – MIDTOWN LAW CENTER
One space available – easy walk to multiple Midtown
restaurants. Turn-key arrangement includes phone,
fax, LD, Internet, gated parking, kitchen, storage,
2 conference rooms and receptionist. Share space
with 7 attorneys, some referrals.
405-229-1476 or 405-204-0404
OKLAHOMA CITY AV RATED SMALL FIRM seeking
attorney for office share and eventual possible merger
or acquisition of general practice in existence for 25
years. Must have at least 5 years’ experience and significant litigation and jury trial experience. Submit a
confidential resume with references to “Box R,” Oklahoma Bar Association, P.O. Box 53036, Oklahoma City,
OK 73152.
POSITIONS AVAILABLE
THE OFFICE OF THE OKLAHOMA ATTORNEY GENERAL IS SEEKING A LEGAL ASSISTANT to assist multiple attorneys with the preparation of pleadings, briefs,
exhibits, correspondence, discovery and court filings.
Salary will be commensurate with experience and qualifications. Must be proficient in WordPerfect and Word.
Excellent spelling and grammar skills; detail oriented;
ability to prioritize; in addition to ECF experience,
knowledge of state and federal filing procedures are required. Heavy litigation experience preferred with an
emphasis on employment law. EOE. The Office of the Attorney General is an equal employment opportunity employer. All individuals are welcome to seek employment
with the Office of the Attorney General of Oklahoma regardless of race, color, sex, age, national origin, creed,
political affiliation, religion or disability, so long as the
disability does not render the person unable to do the
work for which employed. Applicants will not be discriminated against before or during their employment.
Send resume to [email protected] or mail to Oklahoma Attorney General, 313 NE 21st Street, Oklahoma City,
OK 73105.
1149
POSITIONS AVAILABLE
POSITIONS AVAILABLE
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].
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].
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].
EDMOND LAW FIRM SEEKING EXPERIENCED DISTRICT COURT ATTORNEY. Flexible arrangements. Of
counsel, contract, part-time employee, potentially full
time. Cases range from PI, employment, business law,
real estate to workers compensation. [email protected].
LITIGATION FIRM SEEKING AN ASSOCIATE ATTORNEY with 1-5 years of experience. No new
grads. Please email resumes to Suzy Klepac at suzy@
sweetlawfirm.com.
MIDTOWN PERSONAL INJURY LAW FIRM HAS AN
IMMEDIATE OPENING FOR A HIGHLY MOTIVATED ATTORNEY FOR CIVIL LITIGATION to take on
his or her own caseload. Successful candidates will
have a minimum of two years’ experience taking depositions, appearing at court hearings and research and
writing skills. Salary commensurate with experience.
Please email a writing sample and resume, which will be
kept confidential, to [email protected].
AV RATED TULSA INSURANCE DEFENSE, SEEKS
ASSOCIATE WITH 2-4 YEARS EXPERIENCE preferably in civil litigation. Deposition experience a plus. Candidate will conduct depositions, respond to discovery,
propound discovery, draft reports to clients regarding
auto accident, products liability, premises liability.
Health insurance and 401K benefits. Send resume to
Gene Robinson at [email protected].
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.
MIDTOWN PERSONAL INJURY LAW FIRM HAS AN
IMMEDIATE OPENING FOR AN EXPERIENCED LEGAL SECRETARY. We are looking for a candidate with
at least 2 years’ experience, good time management,
typing and computer skills. Must be able to multitask
in a busy work environment. Salary commensurate
with experience. Please email your resume to Kindra.
[email protected].
1150
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].
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.
OKLAHOMA CITY AV RATED MEDICAL MALPRACTICE AND INSURANCE DEFENSE FIRM
SEEKS AN ASSOCIATE ATTORNEY with zero to three
years’ experience. Candidate must be highly motivated, possess the ability, experience and confidence to appear in court for motion hearings and trial. Position
requires strong communication, research and writing
skills. Competitive benefits and compensation package
will be commensurate with experience. All replies are
kept in strict confidence. Applicants should submit resume, cover letter and writing sample to emcpheeters@
johnsonhanan.com.
TRUST OFFICER POSITION AVAILABLE IN SOUTHEAST OKLAHOMA. Large national bank with wellestablished trust department is seeking attorney with 5
years’ experience in mineral management and oil and
gas leasing. Undergraduate degree in business administration, accounting or finance is required. Position
involves management of 30 - 40 current trust accounts
and coordination with in-house auditors and CPAs for
trust clients. Applicants must have good communication skills, work well with the elderly and disabled and
the team of trust officers in the department. Applicants
must be admitted to practice law in Oklahoma. Bank
offers health insurance and 401(K) plan matching program. Submit cover letter and resume with references
to [email protected].
Vol. 87 — No. 15 — 5/28/2016
FEATURED PARTNER
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Seminar’s brought to you by
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Seminar’s brought to you by
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CLESeminars.com is a division of Internet
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entertaining turn-key CLE programs.
Sean Carter is a Harvard Law grad
who spent a decade practicing
securities law before leaving the
practice of law to pursue a career
as the country's foremost Humorist
at Law.
Thursday, June 2
Lies, Damn Lies & Legal Marketing:
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Noon CST (1 hour of Ethics) $50
Tuesday, June 7
Yelp, I've Fallen for Social Media
and I Can't LinkedOut:
The Ethical Pitfalls of Social Media
Tuesday, June 14
The Passion of the Barrister:
An Ethical Lawyer is a Happy Lawyer
Noon CST
CS (1 hour of Ethics) $50
Saturday, June 25
The 2016 Ethy Awards
9 a.m. CST (2 hour 2of Ethics) $100
Monday, June 27
Show Me The Ethics!
The Ethycal Way to Bill for Legal Services
Noon CST
CS (1 hour of Ethics) $50
Tuesday, June 28
The Truth, The Whole Truth
and Nothing But the Truth:
The Ethycal Imperative for
Honesty in Law Practice
Wednesday, June 1
Networking Professionally
and Ethically
Friday, June 10
Ethical Issues and Implications
on Lawyers’ Use of LinkedIn
Friday, June 3
A Lawyer’s Guide to Using
Professional Coaches
Wednesday, June 22
Bad Review? Bad Response?
Bad Idea!
Wednesday, June 8
Finding and Researching Expert
Witness on the Internet
Friday, June 24
Cybersleuth Investigative Series:
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Using Free Public Records and
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ALL of your required 12 hours of MCLE credit can be received by viewing
Live Webcasts, these programs are being "live-streamed" at certain dates
and times and MUST be viewed on those scheduled dates and times.
To register go to: www.okbar.org/members/CLE/Webcasts
Vol. 87 — No. 15 — 5/28/2016
1151
FREE
with theJustices
Moderator:
Chief Justice John Reif
June 14, 2016
6 - 8:40 p.m.
Oklahoma Judicial Center,
2100 N. Lincoln Blvd., Oklahoma City, OK
3/1
Co-sponsored by the Oklahoma Supreme Court
Panelists: Paul Wesselhoft, Okla. House of Rep., Dist. 54
Anil V. Gollahalli, General Counsel, Univ. of Okla.
The film is based on the true story of the late Maria Altmann, an elderly Jewish
refugee, who, together with her young lawyer, Randy Schoenberg, fought the
government of Austria for almost a decade to reclaim Gustav Klimt's iconic
painting of her aunt, Portrait of Adele Bloch-Bauer I, which was stolen from her
relatives by the Nazis in Vienna just prior to World War II. Altmann took her
legal battle all the way to the Supreme Court of the United States, which ruled
on the case Republic of Austria v. Altmann (2004).
To register go to: www.okbar.org/members/CLE

Vol 87 No 15 (May 28) - Oklahoma Bar Association

Transcription

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