Court Material - Oklahoma Bar Association

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Volume 78 u No. 20 u July 28, 2007
Court Material
OBA/CLE presents
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Latz’s Golden Rules of a Negotiation - Part B
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October 16, 2007
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and also follow along over the Internet. These interactive sem inars, in som e cases allow attendees to subm it
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1802
The Oklahoma Bar Journal
Vol. 78 — No. 20 — 7/28/2007
OFFICERS & BOARD OF GOVERNORS
Stephen D. Beam, President, Weatherford
J. William Conger, President-Elect, Oklahoma City
Jack S. Dawson, Vice President, Oklahoma City
William R. Grimm, Immediate Past President, Tulsa
Julie E. Bates, Oklahoma City
Dietmar K. Caudle, Lawton
Cathy M. Christensen, Oklahoma City
Donna L. Dirickson, Weatherford
Robert S. Farris, Tulsa
Brian T. Hermanson, Ponca City
Michael W. Hogan, McAlester
R. Victor Kennemer III, Wewoka
Deborah A. Reheard, Eufaula
Robert B. Sartin, Tulsa
Alan Souter, Bristow
Peggy Stockwell, Norman
Christopher L. Camp, Tulsa, Chairperson,
OBA/Young Lawyers Division
Bar Center Staff
John Morris Williams, Executive Director;
Dan Murdock, General Counsel; Donita Bourns
Douglas, Director of Educational Programs;
Carol A. Manning, Director of Public Information;
Craig D. Combs, Director of Administration;
Gina L. Hendryx, Ethics Counsel; Jim Calloway,
Director of Management Assistance Program; Rick
Loomis, Director of Information Systems; Beverly S.
Petry, Administrator MCLE Commission; Jane
McConnell, Coordinator Law-related Education;
Janis Hubbard, First Assistant General Counsel;
Loraine Dillinder Farabow and Janna D. Hall,
Assistant General Counsels; Robert D. Hanks,
Senior Investigator; Sharon Orth, Ray Page and
Dorothy Walos, Investigators
Nina Anderson, Manni Arzola, Jenn Barrett,
Melissa Brown, Brenda Card, Sharon Dotson,
Johnny Marie Floyd, Matt Gayle, Susan Hall,
Suzi Hendrix, Misty Hill, Durrel Lattimore,
Heidi McComb, Renee Montgomery, Wanda
Reece-Murray, Sandy Neal, Tim Priebe,
Tracy Sanders, Mark Schneidewent, Dana
Shelburne, Laura Willis & Roberta Yarbrough
EDITORIAL BOARD
Editor in Chief, John Morris Williams
News & Layout Editor, Carol A. Manning
Editor, Melissa DeLacerda, Stillwater
Associate Editors: Steve Barnes, Poteau; Martha
Rupp Carter, Tulsa; Mark Curnutte, Vinita;
Luke Gaither, Henryetta; D. Renee Hildebrant,
Oklahoma City; John Munkacsy, Lawton; Julia
Rieman, Enid; James Stuart, Shawnee and Judge
Lori M. Walkley, Norman
NOTICE of change of address (which must be in
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news stories, articles and all mail items should be
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53036, Oklahoma City, OK 73152-3036.
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Vol. 78 — No. 20 — 7/28/2007
AUGUST
3 OBA Access to Justice Committee Meeting; 3 p.m.; Oklahoma
Bar Center, Oklahoma City and OSU Tulsa; Contact: Kade McClure
(580) 248-4675
8
tate Legal Referral Service Task Force Meeting; 1 p.m.;
S
Oklahoma Bar Center, Oklahoma City and Tulsa County Bar Center,
Tulsa; Contact: Dietmar Caudle (580) 248-0202
10OBA Family Law Section Meeting; 3 p.m.; Oklahoma Bar Center,
Oklahoma City and OSU Tulsa; Contact: Donelle Ratheal (405)
842-6342
15OBA Women in Law Committee Meeting; 12 p.m.; Oklahoma Bar
Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Contact:
Elizabeth Joyner (918) 573-1143
16OBA Bench and Bar Committee Meeting; 12 p.m.; Oklahoma Bar
Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Contact:
Jack Brown (918) 581-8211
OBA Work/Life Balance Committee Meeting; 12 p.m.;
Oklahoma Bar Center, Oklahoma City; Contact: Melanie Jester
(405) 609-5280
OBA Government and Administrative Law Section Meeting;
1:30 p.m.; Oklahoma Bar Center, Oklahoma City; Contact: Kevin
Nelson (405) 620-0547
22OBA Diversity Committee Meeting; 3 p.m.; Oklahoma Bar Center,
Oklahoma City and Tulsa County Bar Center, Tulsa; Contact: Linda
Samuel-Jaha (405) 290-7030
23OBA Legal Intern Committee Meeting; 3 p.m.; Oklahoma Bar
Center, Oklahoma City; Contact: H. Terrell Monks (405) 733-8686
23-24OBA Leadership Conference; Sheraton Hotel, One North Broadway, Oklahoma City; Contact: Linda Thomas (918) 337-0947
24OBA Board of Governors Meeting; Sheraton Hotel, One North
Broadway, Oklahoma City; Contact: John Morris Williams
(405) 416-7000
30OBA Member Services Committee Meeting; 3 p.m.; Oklahoma
Bar Center, Oklahoma City and Tulsa County Bar Center, Tulsa;
Contact: Debra Charles (405) 286-6836
For more events go to www.okbar.org/news/calendar.htm
The Oklahoma Bar Association’s official Web site:
www.okbar.org
THE OKLAHOMA BAR JOURNAL is a publication of the Oklahoma Bar
Association. All rights reserved. Copyright© 2007 Oklahoma Bar Association.
The design of the scales and the “Oklahoma Bar Association” encircling the
scales are trademarks of the Oklahoma Bar Association. Legal articles carried
in THE OKLAHOMA BAR JOURNAL are selected by the Board of Editors.
The Oklahoma Bar Journal (ISSN 0030-1655) is published four times a
month in January, three times a month in February, March, April,
May, August, September, October, November and December and bimonthly in June and July effective Jan. 1, 2003. by the Oklahoma Bar
Association, 1901 N. Lincoln Boulevard, Oklahoma City, Oklahoma
73105. Periodicals postage paid at Oklahoma City, OK. POSTMASTER:
Send address changes to THE OKLAHOMA BAR ASSOCIATION, P.O. Box
53036, Oklahoma City, OK 73152-3036. Subscriptions are $55 per year except for law students registered with the Oklahoma Bar Association, who may subscribe for $25. Active member subscriptions are included as a portion of annual dues. Any opinion expressed herein
is that of the author and not necessarily that of the Oklahoma
Bar Association, or the Oklahoma Bar Journal Board of Editors.
1803
BAR NEWS
OBA Nominating Petitions
(See Article II and Article III of the OBA Bylaws)
BOARD OF GOVERNORS
BOARD OF GOVERNORS
SUPREME COURT
JUDICIAL DISTRICT TWO
MEMBER-AT-LARGE
Jerry L. McCombs, Idabel
Jack L. Brown, Tulsa
Petitions have been filed nominating Jerry L.
McCombs for election of the Board of Governors representing Supreme Court Judicial
District 2 of the Oklahoma Bar Association for
a three-year term beginning January 1, 2008.
Petitions have been filed nominating Jack L.
Brown for election of the Board of Governors
representing Members at Large of the Oklahoma Bar Association for a three-year term
beginning January 1, 2008.
A total of 44 signatures appear on the
petitions.
A total of 143 signatures appear on the
petitions.
County Bar Resolutions Endorsing Nominee:
Choctaw, McCurtain, LeFlore and
Pushmataha County
1804
Vol. 78 — No. 20 — 7/28/2007
Oklahoma Bar Association
table of
contents
July 28, 2007
• Vol. 78
• No. 20
page
1803 Events Calendar
1804Bar News
OBA Nominating Petitions Filed
1806
1807
1809
1835
1864
1870
1876
Index to Court Opinions
Supreme Court Opinions
Court of Criminal Appeals Opinions
Court of Civil Appeals Opinions
OBA Legal Ethics Advisory Panel Issues Opinion
Mandates
Disposition of Cases Other Than By Publication
Vol. 78 — No. 20 — 7/28/2007
1805
Index To Opinions Of Supreme Court
2007 OK 52 TIMOTHY N. TOMA, Administrator of the estate of Margaret E. Meszaros,
Plaintiff, v. CLAIRE HENRIETTA TOMA, MATTHEW C. TOMA, and JILL
RENEE TOMA, f/k/a JILL RENEE EDDY, Defendants and CLAIRE HENRIETTA
TOMA, in her capacity as settlor and trustee of the CLAIRE HENRIETTA TOMA
REVOCABLE TRUSTS u/a dtd 12/30/2003, Plaintiff/Appellant, v. TIMOTHY N.
TOMA, in his individual capacity and in his capacity as Ancillary Administrator
of the Estate of Margaret E. Meszaros, Deceased, Defendant/Appellee. No. 102,801............ 1807
Index To Opinions Of Court Of Criminal Appeals
2007 OK CR 26 HAROLD DUWAYNE HAMILL, Petitioner, v. THE HONORABLE
ROCKY L. POWERS, Associate District Judge, Bryan County, Oklahoma,
Respondent. No. MA-2007-45.......................................................................................................... 1809
2007 OK CR 27 BENJAMIN ROBERT COLE, Appellant, v. STATE OF OKLAHOMA,
Appellee. No. D-2004-1260............................................................................................................... 1812
2007 OK CR 28 JIMMY DEAN HARRIS, Appellant, v. STATE OF OKLAHOMA,
Appellee. No. D-2005-117................................................................................................................ 1822
Index To Opinions Of Court Of Civil Appeals
CASES ASSIGNED TO DIVISIONS 1 AND 3 OF THE COURT OF CIVIL APPEALS...........................1835
CASES ASSIGNED TO DIVISIONS 2 AND 4 OF THE COURT OF CIVIL APPEALS...........................1836
2007 OK CIV APP 57 BILL BOWEN and MARY JO BOWEN, Plaintiffs/Appellees, v.
BILLY JACK TUCKER, GARY JOE TUCKER, DONNA SUE TUCKER, CHARLIE F.
TUCKER, and SANDRA DELORES TUCKER, Defendants/Appellants. No. 101,877.......... 1838
2007 OK CIV APP 58 MICHAEL HAYES, Plaintiff/Appellee, v. CATHERINE
MAUDE HAYES, Defendant/Appellant. No. 102,803................................................................. 1841
2007 OK CIV APP 59 MARY LINDA MCCALL, an individual, Plaintiff/Appellant, v.
CHESAPEAKE ENERGY CORPORATION, an Oklahoma corporation;
and CHESAPEAKE OPERATING, INC., an Oklahoma corporation, Defendants/
Appellees. No. 102,929...................................................................................................................... 1844
2007 OK CIV APP 60 TAMMY FAYE MARSH, Plaintiff/Appellee, v. MARK LYNN
MARSH, Defendant/Appellant. No. 103,350................................................................................ 1850
2007 OK CIV APP 61 IN RE THE MARRIAGE OF: DONALD G. WOODARD, Petitioner/
Appellant, v. BEVERLY R. WOODARD, Respondent/Appellee. No. 103,432......................... 1852
2007 OK CIV APP 62 CITY OF STILLWATER, a municipal corporation, Petitioner, v.
SCOTT C. OLIVER and THE WORKERS’ COMPENSATION COURT, Respondents.
No. 103,728......................................................................................................................................... 1855
2007 OK CIV APP 63 DALLAS E. CURLING, III, Petitioner, v. CITY CHEVROLET,
TRAVELERS
INDEMNITY
COMPANY
OF
AMERICA,
and
THE
WORKERS’ COMPENSATION COURT, Respondents. No. 104,009........................................ 1860
2007
OK
CIV APP 64
PORTIA McCLELLAN,
Plaintiff/Appellant,
v. WILLIAM WILBER, Defendant/Appellee. No. 103,498.......................................................... 1861
1806
Vol. 78 — No. 20 — 7/28/2007
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)
2007 OK 52
TIMOTHY N. TOMA, Administrator of the
estate of Margaret E. Meszaros, Plaintiff, v.
CLAIRE HENRIETTA TOMA, MATTHEW
C. TOMA, and JILL RENEE TOMA, f/k/a
JILL RENEE EDDY, Defendants and CLAIRE
HENRIETTA TOMA, in her capacity as settlor
and trustee of the CLAIRE HENRIETTA
TOMA REVOCABLE TRUSTS u/a dtd
12/30/2003, Plaintiff/Appellant, v. TIMOTHY
N. TOMA, in his individual capacity and in
his capacity as Ancillary Administrator of the
Estate of Margaret E. Meszaros, Deceased,
Defendant/Appellee.
by striking from its text the colon that follows
the title of the vote. The amended text of the
vote is attached to this order for filing herein.
The June 26, 2007 version of the vote remains
otherwise unaltered in alll other respects.
DONE ON the 24th day of July 2007.
/s/
Marian P. Opala
Justice
OPALA, J., concurring in result in part and
dissenting in part
ORDER
Insofar as the court concludes that the death of
the joint tenant extinguished the lien sought to
be enforced in this cause against an interest no
longer in legal existence, I concur in the result.
The vote cast herein by Opala, J. titled by him
as concurrring in result in part and dissenting in
part, filed herein on June 26, 2007, is corrected
Insofar as the court denies the surviving
tenant’s motion for counsel-fee award as the
prevailing party in the suit, I dissent.
No. 102,801. July 24, 2007
The Edmond Sun, can be your source for
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1807
NOTICE OF JUDICIAL VACANCY
The Judicial Nominating Commission seeks applicants to fill the following judicial
office:
Justice of the Supreme Court
District One
This vacancy will be created by the retirement of the Honorable Robert E. Lavender,
effective August 1, 2007.
[To be appointed to the office of Justice of the Supreme Court, an individual must
have been a qualified elector of the judicial district applicable, as opposed to a
registered voter, for one year immediately prior to his or her appointment, and
additionally, must have been a licensed attorney, practicing law within the State of
Oklahoma, or serving as a judge of a court of record in Oklahoma, or both, for five
years preceding his/her appointment.]
Application forms can be obtained by contacting Tammy Reaves, Administrative Office
of the Courts, 1915 North Stiles, Suite 305, Oklahoma City, Oklahoma 73105, (405)
521‑2450, and should be submitted to the Chairman of the Commission at the same
address no later than 5:00 p.m., Friday, August 10, 2007. If applications are mailed, they
must be postmarked by midnight, August 10, 2007.
P. L. Pat Phelps, Chairman
Oklahoma Judicial Nominating Commission
www.okbar.org
Your source for OBA news.
At Home
1808
At Work
And on the Go
Vol. 78 — No. 20 — 7/28/2007
Court of Criminal Appeals Opinions
2007 OK CR 26
HAROLD DUWAYNE HAMILL, Petitioner,
v. THE HONORABLE ROCKY L. POWERS,
Associate District Judge, Bryan County,
Oklahoma, Respondent.
No. MA-2007-45. June 28, 2007
AS CORRECTED: July 10, 2007
ORDER ASSUMING JURISDICTION AND
GRANTING WRIT OF MANDAMUS
¶1 The Petitioner, Harold Duwayne Hamill,
is charged in the District Court of Bryan County, Case No. CF-2005-524, with First Degree
Rape. He has petitioned this Court for a writ
of mandamus, to order the Respondent to
permit a psychological evaluation of the complainant by an expert chosen by the defense.
For the reasons explained below, we assume
original jurisdiction in this matter and grant
Petitioner’s request.
PROCEDURAL HISTORY
¶2 Petitioner is charged with the First Degree
Rape of an adult woman. The State alleges that
the complainant was incapable of consenting
to sexual relations due to mental retardation.1
Before filing charges, the State employed a
licensed counselor to examine the complainant
and administer intelligence tests to her. The
counselor testified at preliminary hearing and
gave his opinion about the complainant’s ability to understand and make decisions about
sexual matters.
¶3 After bindover, Petitioner moved the district court to order the production of certain
records concerning the complainant’s mental
capacity, and asked the court to permit the
defense to have the complainant evaluated by
its own qualified expert. After a hearing, the
court (without objection by the State) granted
the request for production of certain records,
but took the request to permit another psychological evaluation under advisement and invited the parties to submit any authority they
might have on the issue. On August 14, 2006,
the district court denied Petitioner’s request
by court minute, stating that “[n]o authority
has been presented to sustain [Petitioner’s]
position.” This ruling was later memorialized
Vol. 78 — No. 20 — 7/28/2007
in a formal order issued January 10, 2007. On
January 12, 2007, Petitioner filed a Petition for
Writ of Mandamus in this Court with a brief
in support, and submitted relevant documents
and transcripts filed below. On January 19,
2007, we stayed the district court proceedings
pending resolution of the Petition. On March
14, 2007, we directed a response from the
Respondent or his designated representative,
and permitted the complainant or her representative to respond as well.
¶4 Petitioner claims that he has a clear legal
right to have the complainant examined by
an expert secured by the defense, because the
State intends to use its own expert evaluation
to prove that the complainant lacked the ability to consent to sexual relations. The State, on
behalf of the complainant, responds that there
is no legal authority for granting Petitioner’s
request, since it does not involve inspection of
physical evidence, to which Petitioner would
clearly be entitled. The State argues that Petitioner can sufficiently prepare his defense by
reviewing the conclusions of the State’s expert,
and the various records on which that expert
relied in addition to his personal interview
with the complainant. The Honorable Respondent concurs in the State’s argument.
PROPRIETY OF THE WRIT
¶5 We must first determine whether the issue
presented is the proper subject of an extraordinary writ. This Court is vested with authority
to issue writs as necessary in aid of its exclusive appellate jurisdiction over criminal prosecutions. Okl.Const. art. 7, § 4; 20 O.S.2001, § 41.
We have often noted that writs of mandamus
and prohibition are not appropriate to interfere in matters wholly within a district court’s
discretion, or where some alternative remedy
is available to the petitioner.2 But we have also
held that writs may issue to prevent a district
court from taking action which would clearly
be an abuse of its discretion.3 Furthermore,
we have held, in other contexts, that a district
court abuses its discretion when it acts under a
mistaken belief that it has no discretion as to a
particular matter.4 Finally, we have often found
issuance of such writs to be appropriate to
resolve matters of constitutional significance.5
1809
We are not alone in having used writs of prohibition and mandamus in these circumstances.6
¶6 On several occasions, we have found the
issuance of a writ of mandamus or prohibition appropriate to afford the accused pretrial
access to certain types of evidence in the State’s
possession. At the time many of these cases
were decided, there was no explicit statutory
authority for the result reached. Rather, each
case was decided on its particular facts and the
overarching constitutional right to a fair trial.7
¶7 From a review of the record, it appears that
the district court believed it had no authority
to permit a defense expert to conduct a psychological evaluation of the complainant. For the
reasons explained below, we find that the court
does have such authority under the particular
circumstances of this case. We grant the writ to
answer that limited question, because in these
circumstances it bears directly on Petitioner’s
constitutional right to a fair trial.
ANALYSIS
¶8 There is no general constitutional right
to discovery in a criminal case. Weatherford v.
Bursey, 429 U.S. 545, 559, 97 S.Ct. 837, 846, 51
L.Ed.2d 30 (1977). Nothing in the federal Constitution precludes the States from experimenting with different discovery schemes aimed at
“enhanc[ing] the search for truth in the criminal trial by insuring both the defendant and
the State ample opportunity to investigate certain facts crucial to the determination of guilt
or innocence.” Williams v. Florida, 399 U.S. 78,
82, 90 S.Ct. 1893, 1896, 26 L.Ed.2d 446 (1970).
Although the Due Process Clause “has little to
say regarding the amount of discovery which
the parties must be afforded, ... it does speak to
the balance of forces between the accused and
his accuser.” Wardius v. Oregon, 412 U.S. 470,
474, 93 S.Ct. 2208, 2212, 37 L.Ed.2d 82 (1973).
¶9 The United States Supreme Court has
been “particularly suspicious” of state rules
which provide nonreciprocal benefits to the
prosecution, at least when the lack of reciprocity interferes with the defendant’s ability to
secure a fair trial. Wardius, 412 U.S. at 474 &
n.6, 93 S.Ct. at 2212 & n.6. Over the past several
decades, Oklahoma, like most jurisdictions,
has moved away from a “trial by ambush” or
“poker game” approach to criminal prosecutions, and toward more even-handed discovery procedures. This shift fosters the orderly
administration of justice; it reduces the delay
1810
that accompanies surprise, enables the accused
to make more informed decisions about his
prospects at trial, and seeks, in the end, to
make the trial an impartial search for truth.
As noted above, we have often used writs of
prohibition and mandamus to clarify what
“due process” requires with regard to particular pretrial discovery issues. In this case, the
State enjoys a benefit not through information obtained from the defense, but through
its natural investigative advantage: its ability to psychologically evaluate a cooperative
complaining witness even before charges are
filed. Yet as the Supreme Court has noted, “the
State’s inherent information-gathering advantages suggest that if there is to be any imbalance in discovery rights, it should work in the
defendant’s favor.” Id. at 475 & n.9, 93 S.Ct. at
2212 & n.9.
¶10 The State apparently intends to use its
expert to establish that the complainant was
not mentally capable of consenting to sexual
relations. The mental state of the complainant
thus bears directly on an essential element of
the offense with which Petitioner is charged.
There is no question that under our Criminal
Discovery Code, Petitioner is entitled to notice
of the State’s intention to use this expert as
a witness at trial, and is entitled to a copy
of any report the expert has compiled. 22
O.S.Supp.2002, § 2002(A)(1)(a), (d). Indeed, the
defense was able to cross-examine the State’s
expert at preliminary hearing.
¶11 However, as the State’s expert admitted,
assessing the mental state of a person is largely
a subtle and subjective endeavor.8 A defense
expert’s review of the State’s expert’s testimony and findings is not always sufficient. Such
a second-hand assessment will often lack the
aura of validity conferred upon the expert who
actually performed the examination. We find
that Petitioner’s access to the findings of the
State’s expert does not completely satisfy due
process concerns in this particular case.
¶12 While the situations warranting such
action are admittedly rare, most jurisdictions
at least recognize the trial court’s authority
to order a psychological examination of the
complaining witness, even in the absence of
express statutory provision.9 We are particularly persuaded by several decisions which hold
that a defendant is entitled to conduct such
an evaluation if he demonstrates sufficient
compelling circumstances. Such circumstanc-
Vol. 78 — No. 20 — 7/28/2007
es include whether the complainant’s mental
state bears directly on an essential element of
the charge, and whether the State intends to
offer the testimony of its own expert to support
that element of proof at trial. See, e.g., State v.
Doremus, 514 N.W.2d 649 (Neb.App. 1994);10
State v. Maday, 507 N.W.2d 365 (Wis. 1993);11
People v. Wheeler, 602 N.E.2d 826 (Ill. 1992);12
State v. Rhone, 566 So.2d 1367 (Fla.App. 1990);13
and State v. Garcia, 613 P.2d 725 (N.M. 1980).14
In several of these cases, the issue was considered by the appellate court through some sort
of interlocutory appeal, similar to the procedural posture of this case.
¶13 We make two observations here. First, if
the complainant here were to sue Petitioner in a
civil action based on the alleged sexual assault,
Petitioner would almost certainly be entitled,
under Oklahoma’s civil discovery rules, to
have her undergo the same type of psychological examination he seeks in this criminal prosecution.15 Second, when the criminally accused
intends to offer evidence of his own mental
condition to support an insanity defense at
trial, this Court has never questioned the district court’s inherent authority to “level the
playing field” by permitting the State to evaluate him with its own mental-health experts.16
Surely, the criminally accused, facing a serious
loss of liberty, is entitled to the same quality
of discovery granted to every other type of
litigant in our justice system.
¶14 We therefore join those jurisdictions
which have held that the trial court has inherent authority to order a psychological or psychiatric evaluation of the complainant in a
criminal prosecution, when the defendant has
demonstrated sufficient compelling circumstances. Our Criminal Discovery Code gives
the district court authority to intervene and
modify the discovery process as unique circumstances may warrant. 22 O.S.Supp.2002,
§ 2002(E). In cases such as this one, where
the complainant’s mental state bears directly
on an essential element of the offense, and
the State intends to offer its own expert testimony on the issue, due process requires that
the accused be afforded the opportunity for
pretrial investigation of substantially similar
quality.17 Of course, the trial court’s authority includes the discretion to determine the
time, place, and manner of such examinations,
including who may be present and what subjects may be covered. We are confident that
the trial court will use that authority to allay
Vol. 78 — No. 20 — 7/28/2007
any concerns that the complainant might be
unduly inconvenienced or embarrassed by a
second examination. While the court cannot
compel the complainant to participate in such
an evaluation, if the complainant refuses to do
so, the court may find it appropriate to bar the
State from introducing its own psychological
evidence at trial. See Morgan v. District Court of
Woodward County, 1992 OK CR 29, ¶ 9, 831 P.2d
1001, 1005 (“[t]he District Court has inherent
and statutory powers to do many things when
the judicial process is thwarted”).18
¶15 For the reasons given above, the petition
for writ of mandamus should be, and is hereby,
GRANTED. The stay of proceedings previously issued in this matter is hereby LIFTED,
and the case is REMANDED to the District
Court for further proceedings consistent with
this Order.
¶16 IT IS SO ORDERED.
¶17 WITNESS OUR HANDS AND THE
SEAL OF THIS COURT this 28th day of June,
2007.
/s/ Gary L. Lumpkin
GARY L. LUMPKIN, Presiding Judge
/s/ Charles A. Johnson
CHARLES A. JOHNSON,
Vice Presiding Judge
/s/ Charles S. Chapel
CHARLES S. CHAPEL, Judge
/s/ Arlene Johnson
ARLENE JOHNSON, Judge
/s/ David B. Lewis
DAVID B. LEWIS, Judge
ATTEST:
/s/ Michael Richie
Clerk
1. See 21 O.S.2001, § 1114(A)(2) (“Rape in the first degree shall
include ... rape committed upon a person incapable through mental
illness or any unsoundness of mind of giving legal consent regardless
of the age of the person committing the crime”).
2. See, e.g., State ex rel. Worthen v. Walker, 1983 OK CR 130, ¶¶ 3-4,
668 P.2d 1174, 1175. To obtain a writ of mandamus, the petitioner has
the burden of establishing: (1) that he has a clear legal right to the relief
sought; (2) the respondent’s refusal to perform a plain legal duty not
involving the exercise of discretion; and (3) the adequacy of mandamus and the inadequacy of other relief. See Rule 10.6(B), Rules of the
Oklahoma Court of Criminal Appeals, 22 O.S., Ch. 18, App. (2007).
3. See, e.g., State ex rel. Boatman v. Payne, 97 Okl.Cr. 48, 51, 257 P.2d
842, 846 (1953) (“We agree that this writ does not lie to control the
judicial discretion of the judge or court... . But this discretion is not
unlimited... . It must be a sound discretion and according to law”
(citation omitted)); State ex rel. Sims v. Caruthers, 1 Okl.Cr. 428, 437, 98
P. 474, 477 (1908) (“Finding, therefore, that said relator has a plain and
adequate remedy at law, he is not entitled to a writ of mandamus at
1811
this time; but cases might arise where, through an abuse of the discretion of the trial judge, it would be otherwise”).
4. Walker v. State, 1989 OK CR 65, ¶ 5, 780 P.2d 1181, 1183.
5. See, e.g., Nichols v. District Court of Oklahoma County, 2000 OK
CR 12, 6 P.3d 506 (district court’s decision to allow media broadcast
of criminal proceedings, while grounded in constitutional rights to
free speech and a free press, violated defendant’s constitutional right
to a fair trial).
6. See, e.g., Sharp v. Tulsa County Election Board, 1994 OK 104, ¶
4, 890 P.2d 836, 839 (“This Court has the authority to issue a writ of
mandamus when the questions are publici juris, or when some unusual
situation exists so that a refusal to exercise jurisdiction would work a
great wrong or a denial of justice. ... The writ of mandamus here was
necessary to prevent the possibility of a constitutional injustice” (citations omitted)); State v. Ross, 76 Okl. 11, ¶ 3, 183 P. 918, 920 (1919) (“[I]t
seems to be very generally and wisely held, that upon sufficient showing the court should exercise original jurisdiction in cases involving an
unusual situation, or where to decline to entertain jurisdiction would
work a great wrong or result in a practical denial of justice”).
7. See, e.g., English v. District Court of Adair County, 1972 OK CR 1,
¶ 3, 492 P.2d 1125, 1126 (writ issued in the interests of “fundamental
justice,” ordering the State to furnish grand jury testimony to defendant, where prosecutor had circumvented defendant’s statutory right
to such testimony by dismissing indictment and refiling charges via
information); Doakes v. District Court of Oklahoma County, 1968 OK
CR 214, ¶¶ 5, 15, 447 P.2d 461, 463, 465 (writ of mandamus issued,
in the interests of “substantial justice,” directing the district court to
permit the defendant access to her own statements to police, as well
as to the weapons used in the homicide); Layman v. State, 1960 OK CR
64, ¶ 12, 355 P.2d 444, 449 (writ of mandamus issued, in the interests
of “fairness,” to compel pretrial disclosure of a technical report that
the State intended to rely on at trial); State ex rel. Sadler v. Lackey, 1957
OK CR 119, ¶ 13, 319 P.2d 610, 615 (where this Court, in the interests
of “equal and exact justice,” denied a writ to prohibit the compelled
disclosure of a forensic report that was key to the State’s prosecution
for vehicular homicide). Indeed, the Criminal Discovery Code, 22
O.S.Supp.2002, § 2002, was preceded by this Court’s promulgation of
similar discovery rules in Allen v. District Court of Washington County,
1990 OK CR 83, 803 P.2d 1164, which also involved a request for an
extraordinary writ.
8. As the State’s psychologist, Greg Howse, explained at preliminary hearing, the intelligence test he administered does not render a
single “intelligence quotient,” nor does it render a particular “age” at
which the subject is functioning. Transcript of Greg Howse, excerpted
from preliminary hearing held March 2, 2006 (hereafter P.Tr.) at 5, 7.
Howse testified that his findings were partially subjective by nature,
and that another, equally qualified mental-health professional might
reach a different conclusion. (P.Tr. 21-23)
9. See generally Gregory D. Sarno, Annotation, Necessity or Permissibility of Mental Examination to Determine Competency or Credibility of
Complainant in Sexual Offense Prosecution, 45 A.L.R.4th 310, § 3.
10. In Doremus, the state charged one mentally retarded adult
with sexually assaulting another mentally retarded adult. At trial, the
State used its own expert’s psychological evaluation to show that the
complainant could not understand the concept of sexuality and therefore could not consent to sexual activity. The trial court had denied
defense requests for an independent psychological evaluation. The
Nebraska Court of Appeals found that the defendant had presented
sufficient compelling reasons for his request, since the mental state of
the complainant bore directly on an essential element of the charge.
The court rejected the State’s suggestion that a defense expert’s review
of the State’s expert’s findings was sufficient: “[A]ny testimony that
defendant could have presented by a nonexamining expert could not
rise to the level of credibility of that of the State’s examining expert.”
514 N.W.2d at 654.
11. In Maday, the defendant faced multiple counts of child sexual
abuse. The prosecution gave notice that it intended to offer five expert
witnesses to testify that the behaviors of the two complainants were
consistent with those of sexual abuse victims that the experts had
seen in the past. In response, the defendant asked the trial court to
order that the complainants submit to psychological evaluations by
qualified experts chosen by the defense. The trial court denied the
request, and the defendant sought review of this pretrial ruling by
interlocutory appeal. The Wisconsin Court of Appeals granted the
petition, holding that the trial court has discretion to grant a defense
request for psychological examination of the complainant when he
demonstrates a “compelling need,” and remanded for further proceedings. 507 N.W.2d at 367.
12. In Wheeler, a prosecution for aggravated sexual assault, the
State gave pretrial notice that it intended to offer expert testimony
that the complainant suffered from “Rape Trauma Syndrome.” The
1812
defendant moved to conduct his own psychological examination of
the complainant, but that request was denied. On appeal from the
defendant’s conviction, the Supreme Court of Illinois rejected the
claim that defense access to the State’s expert’s findings was sufficient
due process: “An expert who has personally examined a victim is in
a better position to render an opinion than is an expert who has not
done so. ... Because the State in this case had the exclusive right to
examine [the complainant], the credibility of its expert was elevated
above that of any nonexamining expert defendant could call.” 602
N.E.2d at 832-33.
13. In Rhone, the defendant was charged with sexual battery against
an adult woman with whom he had been in a relationship. The State
gave notice that it intended to introduce, at trial, expert psychological
testimony that the complainant suffered from “Battered Woman Syndrome,” which bore on her ability to consent to sexual relations with
the defendant — an essential element of the offense. In response, the
defendant moved for an order requiring the complainant to submit
to a psychological evaluation conducted by an expert retained by the
defense. The trial court granted the defendant’s request. The Florida
Court of Appeals denied the State’s petition for review by interlocutory appeal, finding “strong and compelling” reasons supporting the
trial court’s ruling. 566 So.2d at 1369.
14. In Garcia, the defendant was convicted of sexual assaults
against a minor. The state was required to prove force or coercion
which resulted in “mental anguish”; accordingly, before trial, the
defendant moved the trial court to order that the complainant submit
to a psychological evaluation. The trial court concluded that it had no
authority to do so. On appeal, the New Mexico Court of Appeals held
otherwise, particularly because the complainant’s mental state bore
on an essential element of the charge, and reversed for a new trial.
613 P.2d at 728-29.
15. See 12 O.S.2001, § 3235, which provides in part that when the
mental condition of a party or of a person under the legal control of
a party is in controversy, and such person “relies upon that condition
as an element of his claim or defense,” an adverse party may take a
mental examination of such person.
16. Lewis v. State, 1998 OK CR 24, ¶ 38, 970 P.2d 1158, 1171. See also
Lockett v. State, 2002 OK CR 30, ¶ 22, 53 P.3d 418, 426; Traywicks v. State,
1996 OK CR 54, ¶ 12, 927 P.2d 1062, 1065; Hain v. State, 1993 OK CR
22, 852 P.2d 744, 751.
17. We express no opinion on whether such psychological evaluations would ever be material in prosecutions where “consent” to a
sexual act is impossible as a matter of law, due to the complainant’s
age.
18. Although the pleadings also raise the question of who should
bear the costs of such expert assistance, that question is not squarely
before us in this case. Oklahoma law provides that if the accused is
indigent and has counsel appointed at public expense, then requests
for expert assistance and payment for such services shall be handled
by the Oklahoma Indigent Defense System (OIDS); services approved
in all other cases are to be paid by the county court fund. 22 O.S.2001,
§ 1355.4(D)(2); 20 O.S.Supp.2002, § 1304(B)(19). The record indicates
that Petitioner is indigent and has appointed counsel. Counsel submitted to the district court the curriculum vitae of a psychologist that
counsel felt was qualified to conduct the evaluation he has requested.
The record suggests that counsel has obtained at least provisional
approval from the Executive Director of OIDS to hire such an expert
in this case.
2007 OK CR 27
BENJAMIN ROBERT COLE, Appellant, v.
STATE OF OKLAHOMA, Appellee.
No. D-2004-1260. July 11, 2007
OPINION
LUMPKIN, PRESIDING JUDGE:
¶1 Appellant, Benjamin Robert Cole, was
tried by jury in the District Court of Rogers
County, Case Number CF-2002-597, and convicted of First Degree Murder, in violation of
21 O.S.Supp.2001, §701.7 (C). The jury found
the existence of two aggravating circumstanc-
Vol. 78 — No. 20 — 7/28/2007
es: (1) that Appellant had been previously convicted of a felony involving the use or threat of
violence to the person; and (2) that the murder
was especially heinous, atrocious, or cruel.
The jury set punishment at death, and the trial
judge sentenced Appellant in accordance with
this verdict. Appellant now appeals.1
¶2 Appellant’s nine-month-old daughter,
Brianna Cole, was murdered on December 20,
2002. According to the State Medical Examiner,
Brianna’s spine had been snapped in half, and
her aorta had been completely torn through
due widoto non-accidental stretching. The official cause of death was described as a fracture
of the spine with aortic laceration.
¶3 Appellant eventually admitted causing
the fatal injuries. In a statement he gave to
police, Appellant said he’d been trying, unsuccessfully, to get the child, who was lying on
her stomach, to stop crying. Appellant eventually grabbed his daughter by the ankles and
pushed her legs toward her head until she
flipped over. This action broke the child’s back
and resulted in fatal injuries.
¶4 Evidence was admitted that Appellant
took no remedial action just after this incident
happened. He went and played video games,
denied anything was wrong with the child
when confronted by his wife, and said nothing to rescue or medical personnel about what
had happened. (He did, however, attempt CPR
when the situation turned grave, before the
ambulance arrived.) Only after rescue efforts
had failed and an autopsy was performed did
the medical personnel learn that Brianna’s
spine had been snapped. The autopsy physician testified that the injury required a great
amount of force and would not be the result of
normal back-bending by a nine month old. The
death was eventually ruled a homicide. When
told of this fact by the authorities, Appellant
asked, “How many years am I looking at?” At
this point, Appellant confessed his responsibility for the injuries.
PRE-TRIAL ISSUES
¶5 In proposition two, Appellant claims the
trial court’s denial of his motion for a trial
continuance in order to prepare and acquire
critical mitigation evidence violated his Constitutional rights under the Sixth, Eighth, and
Fourteenth Amendments to the U.S. Constitution and Article II, Section 7 of Oklahoma’s
Constitution.
Vol. 78 — No. 20 — 7/28/2007
¶6 It seems that three weeks before trial,
Cole’s defense attorneys had obtained an MRI
of Appellant’s brain that allegedly revealed
abnormalities. Believing this evidence could
be mitigating, counsel sought to develop it
further by hiring an expert. Twelve days before
trial, counsel filed an affidavit and motion for
continuance, stating that further analysis of the
MRI images “may be necessary,” that Appellant was being uncooperative, and that due to
a depleted OIDS staff, counsel had other duties
that were preventing them from providing a
zealous defense.
¶7 Eight days before trial, the trial court
heard oral arguments concerning the motion.
The State objected to the requested continuance. The Court ultimately ruled that none
of the parties were at fault with regard to the
delayed MRI testing, but that based upon how
long the case had been pending, docketing
matters, the retention of an expert who could
look at and evaluate the MRI, and the substance of the request, that no continuance was
necessary.
¶8 Considering the record as a whole, we
find no abuse of discretion in this ruling.
White v. State, 1980 OK CR 10, ¶5, 607 P.2d
713, 714. This claim relies on speculation of
what might have been found had additional
time been granted to perform additional testing. In making its ruling, the trial court obviously considered the additional time between
that day and the time defense counsel had
remaining before such evidence would have to
be presented. The trial court left open a window of opportunity for counsel to accomplish
exactly what it wanted. At least two defense
witnesses touched upon the subject at hand.
While a potential for developing even better
evidence on a particular issue nearly always
exists, the decision to cut off that window of
opportunity in the instant case did not amount
to an abuse of discretion. Moreover, we find
no ineffective assistance of trial counsel with
respect to the way the defense team handled
this issue and no prejudice, as no evidence has
apparently been developed in the two years
since Appellant’s trial occurred. Strickland v.
Washington, 466 U.S. 668, 687, 104 S.Ct. 2052,
2064, 80 L.Ed.2d 674 (1984).
¶9 In proposition four, Appellant claims
the trial court denied him the right to effective assistance of counsel after he developed a
conflict with his trial counsel and requested to
1813
have them replaced. The denial of that request,
Appellant argues, was a violation of the Sixth,
Eighth and Fourteenth Amendments to the
U.S. Constitution and Article II, sections 7 and
20 of the Oklahoma Constitution.
¶10 As Appellant’s brief freely admits, by the
time of trial Appellant “had withdrawn into
extreme religiosity, made little if any effort to
assist his attorneys or to prepare his defense
while awaiting inspiration from God, and sat
through the entire trial at counsel table literally not moving a muscle for hours on end
while reading the Bible.” The record shows
Appellant sought to fire his attorneys less than
a month before trial, due to “Religious Prejudices.” Appellant requested a “Pentecostal
team of lawyers” or “of the like”. Apparently,
due to his trial counsel’s tactic of using his
extreme religious beliefs to help demonstrate
mental incompetence, Appellant believed his
attorneys had “spit in the face of God.” When
questioned by the trial court concerning this
issue, Appellant explained his belief that his
attorneys had exaggerated his religious stance
and therefore he refused to talk with them.
¶11 The trial court refused to appoint new
counsel, however, basing its decision on reasons that are fully supported by the record.
We see no “complete breakdown in communication” of the type addressed in Romero v.
Furlong, 215 F.3d 1107, 1111 (10th Cir. 2006) and
United States v. Lott, 433 F.3d 718, 725-26 (10th
Cir. 2000). Instead, this record suggests an
uncooperative defendant who, religious differences aside, substantially and unreasonably
contributed to the communication breakdown.
This proposition is without serious merit.
FIRST STAGE TRIAL ISSUES
¶12 In proposition one, Appellant claims
evidence of his prior criminal conviction and
prison sentence in California for aggravated
child abuse was erroneously admitted during
first stage proceeding, through multiple witnesses, resulting in “overwhelmingly unfair
prejudice” in violation of his rights under the
Sixth, Eighth and Fourteenth Amendments to
the U.S. Constitution and Article II, Section 7 of
Oklahoma’s Constitution.
¶13 The record shows that Appellant had
been convicted, eighteen years previously, of
aggravated child abuse in California. The injuries in that case were committed by Appellant
against his then six month old son and consist1814
ed of a cigarette burn to the eyelid, bruises on
the head, older bruises to the arms and torso,
bruising to the genitals, and a broken ankle.
¶14 The State filed a Burk’s notice in which
it sought to admit this evidence under exceptions to the statutory prohibition against introducing prior crimes or bad acts in order to
show action in conformity with character. See
12 O.S.2001, §2404 (B). The State listed four
possible exceptions in its notice that might be
applicable to this evidence: (1) common plan
or scheme; (2) lack of mistake or accident; (3)
Myers v. State’s greater latitude rule; and (4) res
gestae. The trial judge ultimately ruled that the
evidence was admissible under the “absence
of mistake or accident” exception. As a result,
jurors were informed in various ways, including during arguments and witness testimony,
that Appellant had a child abuse history that
raised red flags.
¶15 Before turning to the court’s ruling and
how it was applied at trial, we note that two
of the other exceptions listed above could not
have been used to admit this damaging character evidence. That is, Appellant’s eighteen
year old acts of child abuse would not qualify
under the common plan or scheme exception,
as the only similarities between the crimes
were the age and relation of the victims to
Appellant and Appellant’s seemingly uncontrollable outbursts of anger. And the evidence
would not fall under the limited applicability
of the “greater latitude” rule announced in
Myers v. State, 2000 OK CR 25, ¶24, 17 P.3d
1021, 1030. We have applied that “rule” only
in sexual abuse cases and would not have
been particularly interested in expanding its
application further.2
¶16 As for the remaining exception applied
by the Court, “absence of mistake or accident,” Appellant raises two arguments. First,
he claims that he presented no testimony or
evidence in his defense, did not testify himself,
and otherwise made no affirmative attempt to
argue or show that the injuries inflicted upon
his daughter were accidental. Moreover, he
points out that the State medical examiner
testified that the injuries were not the result of
an accident, but were the result of tremendous
deliberate force. Thus, Appellant essentially
argues that the use of this exception depends
on a defendant’s affirmative claim of accident
as a would-be excuse and that it is inapplicable
when a defendant stands mute. Or, at least, that
Vol. 78 — No. 20 — 7/28/2007
when a defendant makes no claim of accident,
then the probative value of the prior crime
character evidence necessarily decreases, and
the would-be prejudicial effect of admitting it
increases.
where the defense did in fact raise the issue of
accident, through argument and cross-examination. Thus, Appellant’s arguments that he
made no affirmative attempt to present an
accident defense are somewhat exaggerated.
¶17 These are interesting arguments with at
least some logical merit. Unfortunately, Appellant provides no supporting citation to bolster
his argument, except for some cases that stand
for the proposition that the more similar the
prior crime is to the instant one, the more the
possible prejudice.
¶22 Besides, the State is the first to present
its case and, in so doing, often never knows
whether or not a defendant will ultimately
take the stand and claim his or her actions
were accidental. The State must anticipate the
defense, to a certain degree.
¶18 Appellant’s second argument is that the
State went beyond the limited purpose upon
which such evidence could be properly considered by a jury. That is, the State emphasized it
repeatedly in an effort to drive home the action
in conformity therewith idea to jurors.
¶19 Turning to the evidence in this case, we
have a defendant who initially told authorities that on the night in question he went to
calm his crying infant without any particular
untoward incident occurring. Even after his
wife informed him the child didn’t look right,
Appellant remained calm, saying she looked
fine. When the child began having trouble
breathing, Appellant performed CPR and
instructed his wife to call 911. When Appellant
was later confronted with the autopsy results
and placed under arrest, however, he admitted he’d grabbed the child by the legs as she
was lying on her stomach and flipped her over
backwards. As he told this story on videotape,
Appellant began sobbing and admitted his
actions caused the death.
¶20 Appellant’s admission and explanation
of the events in question would not necessarily
remove the issue of accident or mistake from
the mix, i.e., whether Appellant’s actions in
flipping the child over in the way he did were
either grossly miscalculated or horribly executed. Given Appellant’s interview demeanor,
a juror might have concluded that Appellant’s actions were more a matter of ignorance
than they were of deliberate and malicious
conduct.
¶21 In this particular type of case, where a
specific intent to kill is not required, but only
the malicious or willful use of unreasonable
force against a child under 18,3 we cannot say
the trial judge abused his discretion in allowing the evidence under the exception.4 Moreover, we find several instances in the record
Vol. 78 — No. 20 — 7/28/2007
¶23 The better issue is whether the State
exceeded the scope of this evidence when presenting it at trial. For the evidence, although
ruled admissible, was still only ruled admissible for a limited purpose, i.e., to discredit any
assertions or evidence of accident or mistake.5
(The jury was, in fact, instructed that the evidence could only be considered for this limited
purpose.)
¶24 Reviewing the record, the State unquestionably focused a lot of its attention at trial on
this prior crime, referring to it in opening statements, in questioning three witnesses,6 and
in closing arguments. The State exceeded the
limited scope for which such evidence may be
properly considered, at least under the court’s
rulings.
¶25 But to a certain extent, the admission
of this evidence was inextricably intertwined
with the State’s investigation of the case and
connected to its burden of proof, 7 for some of
the evidence demonstrated how Appellant’s
past conduct caused authorities to respond in
a certain way. See Jones v. State, 2006 OK CR 5,
¶48, 128 P.3d 521, 540 (discussing how some
prior crimes evidence incidentally emerges).
Even more importantly, some of this evidence
went to intent, another exception found in
2404(B), for the State had to prove that Appellant willfully or maliciously used unreasonable
force. That is, the State had to prove Appellant
intended to use more force than was reasonable under the circumstances or, alternatively,
that the amount of force was malicious insofar
as showing a wish to injure. OUJI-CR 2d 440D.
¶26 Considering the limiting instruction
and the matter of intent, the portions of this
evidence that was closely connected to the
police investigation and that which discredited
claims of accident, we find this evidence was
1815
admissible in the first stage and was not used
improperly by the State.
¶27 In proposition three, Appellant claims
the admission of three gruesome autopsy photographs at trial deprived him of his Constitutional right to a fundamentally fair trial
pursuant to the Sixth, Eighth, and Fourteenth
Amendments to the U.S. Constitution and
Article II, Sections 7 and 9 of Oklahoma’s
Constitution. These three autopsy photos were
admitted over defense objections that they
were unfairly prejudicial, cumulative, and
depictions of the medical examiner’s handiwork — and in spite of the trial court’s own
concerns that they are gruesome. Additionally,
another photo was admitted of the deceased
child as she lay on the autopsy table, but before
any procedures were performed.
¶28 The State, on the other hand, claims
the photographs were corroborative, rather
than cumulative, to the medical examiner’s
testimony. The State also sets forth the general
rule that admission of evidence lies within the
sound discretion of the trial court “whose rulings will not be disturbed unless that discretion is clearly abused, resulting in manifest
prejudice to the accused.” Davis v. State, 2004
OK CR 36, ¶30, 103 P.3d 70, 79.
¶29 The issue of gruesome photographs has
been discussed by this Court in case after case,
and the issues relating thereto are well known.
As we have said before, “Gruesome crimes
result in gruesome pictures.” Patton v. State,
1998 OK CR 66, ¶60, 973 P.2d 270, 290. On the
other hand, post-autopsy photographs have
often been found to be inadmissible by this
Court on the basis that their probative value
was substantially outweighed by prejudicial
effect due to their shocking nature and tendency to focus on the handiwork of the medical
examiner, rather than the defendant. See, e.g.,
Wilson v. State, 1998 OK CR 73, ¶92, 983 P.2d
448, 468; Sattayarak v. State, 1994 OK CR 64, ¶8,
887 P.2d 1326, 1330; Oxendine v. State, 1958 OK
CR 104, ¶¶6-8, 335 P.2d 940 , 942-43.
¶30 Here, the photos at issue fall squarely on
the line between what is relevant and what is
prejudicial. The photos at issue are extremely
grotesque, the sort of pictures that we would
all like to avoid in our lives. However, this
was an extremely brutal crime, one that can
fairly be described as a grown man breaking
a helpless child in half. The nature of those
injuries, unlike most first degree murders, was
1816
hidden inside the child’s body. Indeed, medical personnel attempting to rescue the child’s
life were unaware of the precise nature of the
injury until an autopsy was performed.
¶31 The photos did not show crude Frankenstein stitching, but instead focused on close up
shots of the victim’s wounds, i.e., the broken
spine and separated aorta, after the medical
examiner had done what was necessary in
order to reveal them. We think two of these
shots, rather than three, would have sufficed,
given the fact that Appellant admitted being
the cause. One photo (State’s Exhibit 7) focused
on the injury to the spine while another (State’s
Exhibit 9) focused on the aorta. State’s Exhibit
8 was fairly redundant as to the injuries and
gruesomeness. But we also note that these
three shots were clearly preferable to others
that were curiously proffered by the State, but
denied admission by the Court.
¶32 Still, the State had to prove a willful
or malicious use of unreasonable force by
the defendant, and therefore it was important for the jury to consider fully the force
applied by Appellant’s actions. When speaking of malice and unreasonableness, pictures
are worth much more than words. We find,
therefore, the trial judge did not abuse his
discretion in admitting two of these photos
in the first stage.8 Moreover, we find a lack of
first stage prejudice regarding the admission
of the other photo, given Appellant’s admissions of responsibility. We withhold judgment,
however, regarding what inflammatory impact
this additional photo may have had on sentencing until our review of proposition twelve,
cumulative error, and later in our mandatory
sentence review.
SENTENCING STAGE ISSUES
¶33 In proposition six, Appellant claims
his jury was given an erroneous instruction
regarding the “heinous, atrocious, or cruel”
aggravating circumstance which rendered his
sentencing proceeding constitutionally invalid. That is, Appellant received an older version of the “especially heinous, atrocious, or
cruel” instruction, rather than the modified
version announced in DeRosa v. State, 2004 OK
CR 19, ¶96, 89 P.3d 1124, 1156. Appellant also
claims the evidence was insufficient to support
this aggravating circumstance. And finally, he
claims that this aggravating circumstance is
unconstitutionally vague and overbroad as it
is being applied by this Court, thus violating
Vol. 78 — No. 20 — 7/28/2007
Appellant’s rights pursuant to the Eighth and
Fourteenth Amendments to the U.S. Constitution and Article II, Section 7 of Oklahoma’s
Constitution.
¶34 The first question raised above was previously answered by this Court in Browning
v. State, 2006 OK CR 8, ¶53, 134 P.3d 816, 844.
There, we noted that in DeRosa, “to forestall
any such claim,” we had specifically stated
otherwise, then quoted the following DeRosa
language:
This instruction does not change any of the
legal requirements of the “heinous, atrocious, or cruel” aggravating circumstance
as it has existed up until this time. . . .
This opinion should not be interpreted as
a ruling that the former uniform instruction was legally inaccurate or inadequate,
and this Court does not hold thus. Hence
cases in which the former instruction has
been used and applied are not subject to
reversal on this basis. Such cases will be
evaluated in the same manner as they have
been in the past.
Browning, 2006 OK CR 8, ¶53, 134 P.3d at 844.
As we stated in Rojem v. State, 2006 OK CR
7, ¶70-71, 130 P.3d 287, 301, “[T]he instruction more fully informs and acts as a form of
insurance. But this does not mean the former
instruction has suddenly become unconstitutional.”
¶35 Appellant puts a different spin on this
argument, however, claiming he was denied
an important right conferred by DeRosa
and, consequentially, the trial judge, the
prosecutors as officers of the court, and his
own attorneys through ineffective assistance
collectively denied him the right to a fair
trial by failing to assure his jury received the
DeRosa instruction.
¶36 We acknowledge the DeRosa instruction
is an improved version of the former instruction and that we mandated its use in capital
trials approximately six months prior to the
time Appellant’s jury received its instructions.
But every mistake in a capital trial does not
amount to reversible error. As we have stated
before, no criminal trial is perfect. Our adversarial system grants both sides an advocate
to prove their case, to urge their positions, to
prevent the opposing side from trampling on
their rights. A capital trial requires thousands
of decisions, maneuvering through law and
Vol. 78 — No. 20 — 7/28/2007
paperwork and witnesses and evidence on a
daily basis. Here, the collective failure to read
the latest case handed down on the instruction
for this particular aggravating circumstance
— an instruction that had yet to appear in the
modified OUJI instructions — was a mistake,
but the possible impact on the fairness of
Appellant’s trial was, in our opinion, slight at
best. Because the former instruction is constitutionally acceptable, we cannot grant relief
on this issue, standing alone. However, we will
consider it again when reviewing proposition
twelve, cumulative error, and later during our
mandatory sentence review.
¶37 As for the third argument Appellant
raises in this proposition — that our construction of this aggravating circumstance is overly
broad and unconstitutionally vague — we note
that this issue is raised in virtually every capital murder trial where the especially heinous,
atrocious, or cruel aggravating circumstance
is at issue. We have repeatedly rejected such
claims, however, and see no reason to do otherwise here. See Rojem, 2006 OK CR 7, ¶73,
130 P.3d at 301; Thacker, 2004 OK CR 32, ¶26,
100 P.3d 1052, 1058; Lockett v. State, 2002 OK
CR 30, ¶40, 53 P.3d 418, 430; Le v. State, 1997
OK CR 55, ¶¶41-45, 947 P.2d 535, 552-53, cert.
denied, 524 U.S. 930, 118 S.Ct. 2329, 141 L.Ed.2d
702 (1998). See also Hooker v. State, 1994 OK
CR 75, ¶44, 887 P.2d 1351, 1364-65, cert. denied,
516 U.S. 858, 116 S.Ct. 164, 133 L.Ed.2d 106
(1995); Revilla v. State, 1994 OK CR 24, ¶42, 877
P.2d 1143, 1154-55, cert. denied, 513 U.S. 1096,
115 S.Ct. 764, 130 L.Ed.2d 661 (1995); Berget v.
State, 1991 OK CR 121, ¶¶29-34, 824 P.2d 364,
372-74, cert. denied, 506 U.S. 841, 113 S.Ct. 124,
121 L.Ed.2d 79 (1992). In each of these cases
we found the instruction given regarding the
especially heinous, atrocious, or cruel aggravating circumstance sufficiently narrowed its
application and passed constitutional muster.
¶38 We now turn to Appellant’s second argument, that the evidence supporting this particular aggravator is insufficient. The evidence
on this point is somewhat brief and circumstantial. Therefore, the question of whether the
evidence admitted at trial was sufficient for the
jury’s finding that the murder was preceded by
torture of the victim or serious physical abuse
is one worthy of considerable deliberation.
¶39 Appellant admitted his part in the crime,
although his explanation was brief and lacking in helpful details. Appellant originally told
1817
authorities that Brianna was crying. Appellant’s wife was doing laundry, so he went in
to calm her, then went back to playing video
games. Later, he described similar events,
although on this occasion Appellant did not
mention going in to calm his daughter. Rather,
his wife noticed she didn’t look right, and
Appellant came in, looked her over, and said
she was fine. Appellant even wrote a statement
of this version of the events on the night of the
murder, State’s Exhibit 1.
¶40 The next day, however, authorities first
confronted Appellant with the medical examiner’s ruling that the death was by homicide.
Appellant’s first words were, “How many
years am I looking at?”, thus demonstrating guilty knowledge. Appellant then told
a revised version of his story — that he had
attempted to get Brianna to stop crying, but
she wouldn’t; that he then grabbed his daughter by her ankles while she was lying on her
stomach, then pushed her legs towards her
head, until she flipped over. The testifying
officer, while recounting Appellant’s version
of the events, physically demonstrates how
this was accomplished, but our written record
does not adequately reflect what occurred. But
after he did this, Brianna stopped crying, at
some point. Appellant’s wife then returned to
the room to find Brianna not looking right, and
the rest of the events are similar to Appellant’s
previous explanations.
¶41 Appellant also wrote out a statement
after this interview, State’s Exhibit 2. Therein,
he states, “Brianna was crying so I went into
the room to flip her over by grabbing her by
the leg and flipping her over backwards.” His
wife did not reenter the room for ten to fifteen
minutes after the fatal actions.
¶42 A fair reading of this record, however,
is consistent with the State’s description, that
Appellant forcefully folded his daughter over
until her spine snapped and her aorta tore.
¶43 The medical examiner testified that the
autopsy revealed Brianna’s lumbar spine, the
lower part of her back, had been “broken
and was splayed open in the front….” Also,
Brianna suffered a “complete tear or what we
call a transaction or laceration of the aorta…
an aorta which is completely torn into two
pieces.” The breaking of the spine “can really
only occur when there’s what we call hyperextension or a bending backward of the back
such that it snaps open. And this doesn’t occur
1818
with normal bending, but would only occur
with …abnormal bending backward of the
back.” The medical examiner further testified
that the injury would take a “great amount of
force and a deliberate force.” And the aorta
was not severed by the bone breaking. The
medical examiner testified that it is elastic
like a rubberband and had been stretched and
stretched and stretched until it finally passed
the breaking point. His conclusion, then, was
that “we’re talking about basically folding the
back in half.”9
¶44 The medical examiner testified that this
injury would “absolutely” be painful to a ninemonth-old child. Moreover, he stated “[t]here’s
no unconsciousness would occur instantaneously… It takes a little bit of time for enough
blood to leave the vessels and not feed the
brain before one becomes unconscious with
an injury like that….” The medical examiner
testified that the child was probably conscious
for no more than 30 seconds after the spine
snapped and that she probably died within
two or three minutes.
¶45 And so, we have a crying child who is
essentially snapped in two by great force at
the hands of her father. She was alive when the
painful force was applied and she continued to
feel pain for another thirty seconds afterward
until she went unconscious and then expired
a few minutes later. The amount of force
required was great and the stretching before
the breaking of the spine and tearing apart of
the aorta would have been protracted and not
instantaneous.
¶46 The especially heinous, atrocious, or
cruel aggravator requires a finding of torture
or great physical abuse. In the DeRosa instruction, torture is further qualified as requiring
the infliction of “great physical anguish or
extreme mental cruelty” and “serious physical abuse” and “great physical anguish” are
further qualified as requiring the victim to
experience “conscious physical suffering.”
¶47 While Brianna Cole suffered a fairly
quick death, it was far from painless. Indeed,
the pain was likely excruciatingly horrible.
One cannot read this chilling record without
concluding that Brianna suffered both torture
and serious physical abuse at the hands of
Appellant. She experienced a heinous death
with great conscious suffering to a degree
unlike “virtually all murders,” thereby placing this crime within the narrowed class of
Vol. 78 — No. 20 — 7/28/2007
individuals for which capital punishment is
a valid option. Accordingly, we find the evidence admitted at trial, when viewed in a light
most favorable to the State, was sufficient to
find beyond a reasonable doubt that the murder was especially heinous, atrocious or cruel.
Black v. State, 2001 OK CR 5, ¶79, 21 P.3d 1047,
1074; Malicoat v. State, 2000 OK CR 1, ¶16, 992
P.2d 383, 397, cert. denied 531 U.S. 888, 121 S.Ct
208, 148 L.Ed.2d 146 (2000).
¶48 Appellant’s last argument concerning
this aggravator — that the “duplicative elements of the crime of child abuse mimic the
legal requirements for the ‘heinous, atrocious,
or cruel’ aggravating circumstance and thus
Oklahoma’s first degree murder statute does
not constitutionally narrow the class of murderers who are subject to the death penalty”
— was previously studied and rejected by this
Court in Malicoat, 2000 OK CR 1, ¶¶24-25, 992
P.2d at 399-400.10 We do so again here for the
same reasons.
¶49 In proposition eight, Appellant claims
the introduction of the details of his prior
conviction during the first stage proceedings
prejudiced him during the penalty phase proceedings and resulted in a death sentence
obtained in violation in violation of the Eighth
and Fourteenth Amendments to the U.S. Constitution and Article II, Sections 7 and 9 of
Oklahoma’s Constitution. More specifically,
Appellant claims under Brewer v. State, 1982
OK CR 128, ¶¶41-42, 650 P.2d 54, 63 that he
had the right to stipulate that his prior felony
conviction (as alleged by the State) involved
the use or threat of violence, thereby avoiding
prejudicial details of the prior crime.
¶50 But, as the State correctly points out, this
rule does not come into play when the State
also alleges the continuing threat aggravating circumstance, as was the case here. When
the State alleges both of these aggravators,
“the jury is entitled to have before it all possible relevant information about the individual defendant whose fate it must determine.”
Smith v. State, 1991 OK CR 100, ¶29, 819 P.2d
270, 277. Although jurors acquitted Appellant of the continuing threat aggravator, the
evidence would have come in during second
stage. (Moreover, we have already determined
there was no error in considering this evidence
during the first stage.) Therefore, Appellant’s
claim in this proposition fails.
Vol. 78 — No. 20 — 7/28/2007
¶51 In propositions seven, nine, ten, and
eleven, Appellant raises claims that are raised
by nearly all capital defendants as a matter of
course. Each of these claims has been repeatedly
rejected by this Court for various reasons.
¶52 We thus reject each of these claims in
accordance with our previous decisions, as
follows: proposition seven — that the status
of Oklahoma’s crime of child abuse murder as
one of general intent fails to provide a constitutionally adequate culpability requirement that
must result in vacature of the death sentence in
this case as having been imposed in violation
of the Eighth and Fourteenth Amendments to
the United States Constitution and Article 11,
Section 7 and 9 of Oklahoma’s Constitution;11
proposition nine — that the introduction of a
full color photograph of the minor decedent
depicting her in life (in a staged portrait setting) during penalty phase proceedings violated Appellant’s constitutional rights under
the Eighth and Fourteenth Amendments to
Section 7 of Oklahoma’s Constitution, and
his right to be free of ex post facto laws;12
proposition ten — that the second stage jury
instructions on the definition of mitigating
evidence deprived Appellant of a fundamentally fair sentencing proceeding in violation
of the Eighth and Fourteenth Amendments to
Section 7 and 9 of Oklahoma’s Constitution;13
and proposition eleven — that Appellant was
denied his constitutional right to jury trial by
the failure of the trial court to instruct the jury
that it must find that the aggravating circumstances outweighed the mitigating evidence
beyond a reasonable doubt in violation of the
Sixth, Eighth, and Fourteenth Amendments to
the United States Constitution.14
ISSUES RELATING TO BOTH STAGES
¶53 In proposition five, Appellant claims
prosecutorial misconduct in seeking sympathy for the decedent violated his right to a
fundamentally fair trial and sentencing proceeding in violation of the Sixth, Eighth, and
Fourteenth Amendments to the United States
Constitution and Article II, Sections 7 and 20
of Oklahoma’s Constitution.
¶54 Appellant points to four brief examples
from the nine-day trial. First, during first stage
opening statement the prosecutor made two
references about the death occurring just prior
to what would have been Brianna’s “first
1819
Christmas.” No objection was made to the
comment, and we find no error, plain or otherwise. The occurrence of this murder on the
week before Christmas is a tragic circumstance
that is instantaneously obvious to everyone,
this Court included. Certain facts simply cannot be disentangled from a criminal trial on the
basis that they also evoke sympathy.
¶55 Next, Appellant points to first stage closing arguments, when the prosecutor argued
that children are a blessing, one that most parents, grandparents, etc. would give anything
for and value highly. No objection was made,
however, and for good reason. These comments fall within the wide latitude of discussion permitted both the state and the defense
in closing argument. Short v. State, 1999 OK CR
15, ¶72, 980 P.2d 1081, 1104.
¶56 Next, Appellant points to brief comments at the end of first stage closing arguments when the prosecutor argued that children are a precious gift, entrusted to parents
by God. Again, no objection was raised, and
we find no plain error. Simpson v. State, 1994
OK CR 40, ¶2, 876 P.2d 690, 692-93. It is probably safe to say that most Americans, probably
a strong majority, would agree with this statement wholeheartedly. While the statement is
perhaps objectionable, as possibly injecting
God into the mix and for its intentional melodrama, it does not, standing alone, amount to
plain error.
¶57 Appellant’s last example, which occurred
during the prosecutor’s penalty phase closing,
concerns the prosecutor’s story of how his
father told him that a “baby’s cry is God asking you to help them,” along with a later reference to an earlier unobjected to description of
the victim as God’s gift. No objections were
made by defense counsel. Again, we find no
plain error. While the sentimental statement
above were, in our opinion, slightly beyond
that “wide latitude” given to parties to discuss
the evidence and make reasonable arguments
therefrom, Appellant’s trial or sentencing was
not rendered unfair by these last remarks,
or when all of the examples are considered
together. The record indicates that Appellant
was himself responsible for injecting religion
into this trial by his bizarre behavior, so much
so that his counsel, at times, had to do their
best to convince jurors that Appellant was
simply a devout man, rather than a troubling
zealot. In context, then, the prosecutors’ brief
1820
arguments about God were no more than an
adversarial balance to Appellant’s positions on
religion.
¶58 In his twelfth proposition, Appellant
claims the cumulative effect of the errors
raised in this appeal denied him a fundamentally fair trial. We have found only arguably
improper argument relating to first stage that
need be considered in this proposition. The
argument was not objected to and did not
amount to plain error. Therefore, we find no
cumulative error impacting the jury’s decision
on guilt/innocence.
¶59 With respect to the second stage, we
found only one photograph that was potentially prejudicial as to second stage. We have
also found that Appellant was not given the
benefit of the improved DeRosa instruction,
even though the former instruction that he
received was constitutionally adequate. We
have also found two brief arguments made by
counsel (the first stage argument referenced in
the prior paragraph and then one occurring in
second stage closing) that were not objected
to and which served to balance some of the
religion injected into this trial by Appellant.
¶60 Overall, then, we cannot say that the
cumulative impact of these fairly minor trial
errors could have conceivably impacted the
sentencing decision in any way. Therefore, we
decline to grant relief.
MANDATORY SENTENCE REVIEW
¶61 Pursuant to 21 O.S.2001, §701.13 (C) and
in response to Appellant’s final arguments in
proposition thirteen, we must now determine
(1) whether the sentence of death was imposed
under the influence of passion, prejudice or
any other arbitrary factor, and (2) whether
the evidence supports the jury’s finding of
the aggravating circumstances set forth in 21
O.S.2001, §701.12.
¶62 Turning to the second portion of this
mandate, the jury found the existence of two
aggravating circumstance: (1) that Appellant
had been previously convicted of a felony
involving the use or threat of violence to the
person; and (2) that the murder was especially heinous, atrocious, or cruel. We have
found sufficient evidence to support the second aggravating circumstance, and Appellant
has raised no meaningful appellate challenge
to the first, which we find is also supported
Vol. 78 — No. 20 — 7/28/2007
by the record in regard to Appellant’s abuse of
another of his children years ago.
issued upon the delivery and filing of this
decision.
¶63 The following mitigating evidence was
presented by Appellant: Appellant was sexually molested as a child; that Appellant has
brain damage; that the Appellant confessed to
the crime; that Appellant expressed remorse;
that Appellant has intermittent explosive personality disorder; that Appellant has a personality disorder not otherwise specified; that
Appellant is an alcoholic; that Appellant’s
life is valued by his family; that Appellant is
devoutly religious; that Appellant is unlikely
to be violent in a prison setting or outside of
a domestic relationship; that Appellant does
well in a structured prison setting. In addition to this, we have Appellant attempting to
conduct CPR on the victim after the incident.
Brianna had been taken in for regularly scheduled post-natal checkups before the incident,
accompanied by both parents. Appellant’s first
wife described Appellant as a perfect husband,
until he became involved with the wrong
people and drinking. Appellant’s step-brother
described a poor domestic situation growing,
whereby Appellant regularly “huffed” gasoline. As to the aforementioned sexual molestation Appellant suffered through as a child, testimony was introduced that it was at the hands
of a close male friend of Appellant’s father and
that Appellant’s father did not believe him or
support him with respect to the allegations
when they were revealed.
AN APPEAL FROM THE DISTRICT COURT
OF ROGERS COUNTY
¶64 In addition to this mitigating evidence
and the aggravating evidence discussed previously in this opinion, other witnesses described
violent outbursts of anger by Appellant against
his former wife and his children.
¶65 Upon review of the record and after
carefully weighing the aggravating circumstance and the mitigating evidence, along with
the errors alleged in this appeal, we find the
sentence of death to be factually substantiated
and appropriate. We cannot say the sentence
of death is being imposed under the influence
of passion, prejudice, or any other arbitrary
factor.15
DECISION
¶66 The judgment and sentence are hereby
AFFIRMED. Pursuant to Rule 3.15, Rules of the
Oklahoma Court of Criminal Appeals, Title 22, Ch.
18, App. (2006), the MANDATE is ORDERED
Vol. 78 — No. 20 — 7/28/2007
THE HONORABLE J. DWAYNE STEIDLEY,
ASSOCIATE DISTRICT JUDGE
APPEARANCES AT TRIAL
G. Lynn Burch, James C. Bolen, Okla. Indigent
Defense System, Capital Trial Division, 610 S.
Hiawatha, Sapulpa, OK 74066, Counsel For
Appellant,
Ray Hasselman, First Assistant District Attorney, Patrick Abitbol, Assistant District Attorney, Rogers County Courthouse, 219 S. Missouri, Claremore, OK 74017, Counsel For The
State.
APPEARANCES ON APPEAL
James L. Hankins, Ogle & Welch, 117 Park Avenue, Third Floor, Oklahoma City, OK 73102,
Counsel For Appellant,
W.A. Drew Edmondson, Attorney General of
Oklahoma, Jennifer J. Dickson, Assistant Attorney General, 313 N. E. 21st Street, Oklahoma
City, OK 73105, Counsel For The State.
OPINION BY: LUMPKIN, P.J.
C. JOHNSON, V.P.J.: CONCUR
CHAPEL, J.: CONCUR IN RESULT
A. JOHNSON, J.: CONCUR
LEWIS, J.: CONCUR IN RESULT
1. Appellant’s Petition in Error was filed in this Court on May 11,
2005. His initial brief was filed on January 23, 2006. The State’s brief
was then filed on May 24, 2006, and a Reply brief was filed on July 10,
2006. The case was submitted to this Court on June 1, 2006, and oral
arguments were held on December 19, 2006.
2. Appellant’s brief states that this Court has “allowed such evidence more liberally in child abuse cases… to allow the State to rebut
assertions of mistake or accident. See, e.g., Revilla v. State, 1994 OK CR
24, 877 P.2d 1143; Freeman v. State, 1984 OK CR 60, 681 P.2d 84; White
v. State, 1980 OK CR 10, 607 P.2d 713; Ashford v. State, 1979 OK CR 138,
603 P.2d 1162.” But these are his words, not ours, and the cases cited
speak for themselves on how we have applied this particular exception in past cases. Moreover, the fact that the trial court did not base its
decision on Myers makes the fact that a majority of this Court recently
overruled the Myers greater latitude rule in James v. State, 2006 OK CR
1, ¶4, 152 P.3d 255, 257 irrelevant.
3. OUJI-CR 2d 4-65A.
4. In so ruling, we necessarily find the probative value of this
evidence was not “substantially outweighed by the danger of unfair
prejudice….” 12 O.S.Supp.2003, §2403 .
5. Appellant argues that jurors, upon hearing such evidence, “cannot reasonably be expected to separate out the legal niceties and apply
such evidence for a narrow purpose such as to rebut any inference
of mistake or accident.” We agree that this particular exception has
unique propensity implications under the facts of this case. However,
we view this more as a matter of discrediting a defense than proving
action in conformity with past character. Appellant’s own admissions
and the circumstances of his actions are much more damning than any
inferences made from his prior crime.
1821
6. The State went so far as to call a witness from California who
had investigated the prior crime years ago, asking him about the facts
of that case.
7. The record indicates that child welfare authorities were monitoring the family after Brianna’s birth, due to Appellant’s history of
child abuse. This history played a part in the early investigations
into Brianna’s death, i.e., officers were quickly made aware of
Appellant’s history via child welfare workers, thought it raised red
flags, and questioned him about it on the same day that Brianna was
killed. Thus, the investigations were in part triggered or hastened by
Appellant’s abusive history, and it would have been difficult if not
impossible to completely extract this portion of the investigational
motives from the trial. In other words, the prior crimes evidence was
so connected to the crime in question that it cannot be fairly separated
from the crimes charged.
8. The fourth photo, a picture of Brianna’s face and upper torso
after she had died but before the autopsy began had no particular
relevance and should not have been admitted. But at the same time,
the photo was not really prejudicial either, and we decline to grant any
relief with respect to it.
9. This testimony makes the autopsy photographs highly probative to show both cause of death and the conscious physical suffering
required by the especially heinous, atrocious, or cruel aggravator.
10. As previously and subsequently reflected, the Supreme Court
has twice declined certiorari with respect to Malicoat.
11. Malicoat, 2000 OK CR 1, ¶15, 992 P.2d at 396; Malicoat v. Mullin,
426 F.3d 1241, 1254-55 (10th Cir. 2005) cert. denied, __ U.S. _, 126 S.Ct.
2356, 165 L.Ed2d 283 (2006); Workman v. Mullin, 342 F.3d 1100, 1114
(10th Cir. 2003).
12. Hogan v. State, 2006 OK CR 19, ¶61, 139 P.3d 907, 930. Hogan
does not overtly address the Constitutional sections referenced above
by Appellant; however, it does speak of the general constitutionality of
the amendments to 12 O.S.Supp.2002, §2403 , which actually went into
effect about a month before this particular crime was committed.
13. Rojem, 2006 OK CR 7, ¶¶57-58, 130 P.3d at 299.
14. Id., 2006 OK CR 7, ¶¶59-60, 130 P.3d at 299.
15. In a post-briefing “notice,” Appellant claims the holding of
Anderson v. State, 2006 OK CR 6, 130 P.3d 273 should apply to this case
and that Appellant should have received an instruction concerning the
fact that a person given a life sentence would be required to serve 85%
of his sentence before becoming eligible for parole. We find, however,
that no relief is required in the instant case, however, as Appellant’s
jury was aware that they had three sentencing options: death, life
without the possibility of parole; and life with the possibility of parole.
The jury determined that death was the appropriate sentence, thereby
rejecting a sentence that would keep Appellant in prison with no possibility of parole. The absence of an Anderson instruction, therefore, did
not prejudice Appellant, and any error was harmless.
2007 OK CR 28
JIMMY DEAN HARRIS, Appellant, v.
STATE OF OKLAHOMA, Appellee.
No. D-2005-117. July 19, 2007
OPINION
CHAPEL, JUDGE:
¶1 Jimmy Dean Harris was tried by jury
and convicted of Murder in the First Degree in
violation of 21 O.S.1991, § 701.7, in the District
Court of Oklahoma County, Case No. CF-19995071. On appeal, this Court reversed the punishment of death recommended by the jury
and imposed by the trial court, and remanded
the case for resentencing.1 The jury at Harris’s
resentencing trial found that Harris knowingly
created a great risk of death to more than one
person, and constituted a continuing threat
to society. In accordance with the jury’s recommendation, the Honorable Virgil C. Black
1822
imposed the death penalty. Harris appeals
from this sentence.
¶2 Harris, who was a skilled transmission mechanic, and his wife, Pam, worked in
front office positions in transmission shops.
Throughout their relationship the two often
worked together. Despite being business partners as well as husband and wife, they had a
stormy relationship. This worsened significantly when Pam was hired, but Harris was not, to
work in Merle Taylor’s AAMCO transmission
shop in Oklahoma City. Harris commuted
to work in Texas for several months, during
which time the marriage suffered. After Harris had a work-related accident, he returned
to Oklahoma. By the summer of 1999, Pam
told him the marriage was over. While Harris
agreed to a divorce, he was angry and upset,
and continued to hope Pam would return to
him. In mid-August of 1999, Harris called
Pam, threatening to kill her, her parents, their
daughter, her co-workers, and Merle Taylor.
Pam got a protective order against Harris and
filed for divorce. The divorce was granted on
August 25, 1999, and Harris was ordered to
leave the home without removing any property. Harris and Pam had previously taped an
agreement dividing the house property. On
the evening of the 25th, Harris moved out of
the home, taking furniture and many of Pam’s
personal possessions. He also vandalized the
house. Pam discovered the damage the next
day, found out where Harris had stored her
furniture and his tools, and had a lock put on
that shed. In the succeeding days Harris called
Pam often demanding that she remove the
lock. Each time, she explained she could neither talk to him nor remove the lock, and told
him to call her attorney. He refused, explicitly
stating he would talk to her. He continued to
threaten her and others. On August 31, 1999,
he threatened to kill Pam and was seen driving
by the AAMCO shop.
¶3 On the morning of September 1, 1999,
Harris called the AAMCO shop several times,
demanding that she remove the lock on the
storage shed and threatening Pam and Merle
Taylor. At approximately 9:00 a.m. Harris
arrived at the shop and asked for Pam, who
was standing with Merle Taylor and his daughter-in-law Jessica. He shot Taylor twice at close
range, and shot at Jessica. Harris shot Pam,
chased her when she ran, and pistol-whipped
her when he ran out of bullets and could not
quickly reload his gun. When Pam escaped,
Vol. 78 — No. 20 — 7/28/2007
Harris fled, discarded the gun and his van,
and hid in a friend’s garage. Harris claimed
he was angry and upset, and could not make
good decisions because he was of low intelligence, was under the influence of alcohol
and drugs, and was mentally ill (although not
legally insane).
¶4 To support the aggravating circumstances,
the State presented the evidence of the circumstances of the crimes. There was also evidence
that, during the ongoing difficulties in midAugust, Pam had called police and Harris had
resisted arrest. The State presented evidence
that Harris assaulted a jailer while awaiting
trial, and had physically, verbally and emotionally abused Pam throughout their relationship.
The State also presented victim impact evidence. In mitigation, Harris presented evidence
from his family and former co-workers, as well
as expert evidence, regarding his traumatic and
abusive childhood, history of substance abuse,
low intelligence, emotional instability, and
possible mental illness.
Issues Regarding Jury Selection
¶5 In Proposition V Harris claims that the
trial court’s failure to provide the jury with
cautionary instructions on the taking and use
of notes during trial and deliberation deprived
him of his rights to a fair trial and due process.
The trial court allowed jurors to take notes
during the course of the trial and provided
them with notebooks and pencils. The court
told jurors that any notes they took were for
their personal use, and would not become part
of the public record. However, the trial court
did not instruct jurors on the taking and use
of notes during trial or deliberations. Harris
claims this omission deprived him of a right to
a fair trial and due process. He neither requested these instructions at trial, nor objected to
the trial court’s failure to give them, and has
waived all but plain error. There is none.
¶6 In Cohee v. State we held that a trial court
may, in its discretion, allow jurors to take
notes.2 While Cohee explained why note-taking may be beneficial, and set forth guidelines
for the trial court’s consideration, it did not
promulgate or require any specific instructions
on the process of note-taking.3 The Uniform
Jury Instructions include instructions on notetaking which are based on the comments and
guidelines in Cohee.4 The Notes on Use to the
Uniform Jury Instructions (revised) note that,
in keeping with Cohee, these instructions are
Vol. 78 — No. 20 — 7/28/2007
recommended, not mandatory. Trial courts
should use both mandatory and recommended
uniform instructions which accurately state
the applicable law.5 However, the failure to use
recommended instructions does not require
reversal where the jury is accurately instructed
on the law. In Hanson v. State,6 this Court
previously considered the failure to use the
recommended instructions on jury note-taking. We determined that this omission was not
plain error, where the instructions to the jury,
“taken as a whole, fairly and accurately stated
the applicable law, channeling juror’s discretion in their use of notes.”7 The trial court told
jurors that notes were for their personal use
only. Jurors were otherwise properly instructed on their function, the definition of evidence,
and the trial and deliberations process. Taken
together, these instructions properly narrowed
the jury’s discretion to use notes taken during
trial. The trial court’s omission was not plain
error.
Issues Relating to the Sentencing
Stage of Trial
¶7 Harris argues in Proposition III that the
trial court’s failure to provide a complete
record of the proceedings leading to his death
sentence violated his constitutional rights. In a
capital case, the State has the burden to ensure
a complete record of the trial is provided,
which will enable the Court to conduct its
mandatory sentence review.8 However, failure to provide a complete record is not per
se reversible error.9 In Pickens v. State, private
conversations with two jurors during voir dire
were not recorded. The Court found that, as no
errors were alleged during jury selection and
the potential jurors were excused for cause, no
error was shown and our ability to conduct the
mandatory sentence review was not affected.10
By contrast, in Van White the parties completely failed to transcribe voir dire proceedings.
This deprived the Court of the ability to consider potential juror bias or other questions of
improper juror prejudice as part of our mandatory sentence review, and required reversal.11
The defendant must show that the failure to
transcribe a portion of the trial resulted in
error and affects this Court’s ability to conduct
a mandatory sentence review.12 Harris fails to
meet this standard. As our discussion shows,
this record is complete enough for this Court
to determine whether the jury’s verdict was
imposed under the influence of passion, prejudice, or any other arbitrary factor, and whether
1823
sufficient evidence supports the aggravating
circumstances.13
plete record on this issue does not impede our
ability to conduct a review.
¶8 During deliberations, Harris’s jury asked
for a dictionary. The trial court responded in
writing by asking what word the jury wanted
defined. Jurors replied that they wanted definitions for “probability” and “possibility”. The
trial court sent typewritten dictionary definitions of those words to the jury room. While
this exchange of notes is physically preserved,
the trial record makes no mention of them.
There is no indication whether the trial court
discussed these requests with the parties, or if
so, whether defense counsel agreed to the trial
court’s resolution of the question.14
¶10 Harris also claims that the trial court
violated statutory procedures in handling the
jury’s questions. If jurors express disagreement
regarding testimony or have a question on a
point of law, they should be brought into court
and the trial court should answer their question only in the presence of all parties, or after
they have been called.19 Harris suggests this
Court must presume prejudice from the trial
court’s failure to follow this procedure, because
the circumstances surrounding the trial court’s
receipt of and answer to the questions were not
transcribed. However, the record, in the form
of the written notes, shows that the trial court
did not abuse its discretion in answering jurors
by giving them what they requested, without
allowing a dictionary into the jury room. On
this record, the trial court’s failure to follow the
statutory procedure is harmless.20
¶9 Harris first claims that this Court cannot
determine whether the trial court appropriately answered the jury by supplying the requested dictionary definitions without knowing the
context for the jury’s request. Harris suggests
that a dictionary definition would be inappropriate for “some words” which are legal terms
of art, but fails to show that either “probability”
or “possibility” falls within that category. The
word “possibility” is found in every instruction
which mentions the punishment alternatives
“imprisonment for life without the possibility
of parole, or imprisonment for life with the
possibility of parole.”15 “Probability” occurs in
the context of the continuing threat aggravating circumstance, “a probability that the defendant would commit criminal acts of violence
that would constitute a continuing threat to
society.”16 These are the only contexts in which
these words are mentioned in the jury instructions. Harris would have this Court speculate
on other contexts within which the jury might
have wanted definitions of the words, but does
not show any context in which a dictionary
definition would be improper. Harris recognizes that we have recently warned trial courts
against allowing jurors any outside reference
material in deliberations, including dictionaries.17 The trial court here acted appropriately in
refusing the jury’s request to have a dictionary
in the room during deliberations. However,
the trial court attempted to be responsive to
the jury’s request, as we encourage trial courts
to do,18 and provided the exact information
jurors requested. Neither the record before us,
nor Harris’s argument, suggests that this decision was an abuse of discretion. As counsel
could not have been ineffective had counsel
failed to object to this decision, the incom1824
¶11 Here, as the State notes, the appellate
record contains the written notes exchanged
between trial court and jury. The record
does not show whether defense counsel had
an opportunity to object to the trial court’s
instruction defining the words “probability”
and “possibility”. However, this Court is able
to review the exchange itself.21 We have done
so, and concluded that (a) the trial court did
not abuse its discretion in providing dictionary
definitions to jurors, and (b) the trial court’s
failure to bring the jury into open court upon
receiving the request did not prejudice Harris.
The record is sufficient to allow this Court to
conduct its mandatory sentence review.
¶12 Merle Taylor’s son and wife each gave
victim impact evidence, and asked jurors to
impose the death penalty. Harris argues in
Proposition VII that this recommendation was
unconstitutional and denied him his right to
a fair trial. Harris admits that this Court has
held that family members of the victim may
recommend a sentence in a capital sentencing
trial,22 but urges us to reconsider. We decline
this invitation.
¶13 In Proposition VIII Harris argues that
the State improperly re-alleged the continuing
threat aggravating circumstance. In Harris’s
original trial and again at resentencing, the
State alleged that Harris would constitute a
continuing threat to society. At Harris’s first
trial, jurors did not find this aggravating circumstance. Harris claims that this failure is
Vol. 78 — No. 20 — 7/28/2007
equivalent to an acquittal, and that the State
was barred from re-alleging that he would be
a continuing threat in the resentencing proceedings. This Court recently considered and
rejected this claim in Hogan v. State.23 We will
not reconsider it in this case.
¶14 Harris claims in Proposition IX that
insufficient evidence supported the jury’s finding of the continuing threat aggravating circumstance. The jury found that there existed a
probability that Harris would commit criminal
acts of violence which would constitute a
continuing threat to society. Harris claims the
State presented insufficient evidence that he
presented a continuing threat to society. To
support this aggravating circumstance, the
State must show that Harris’s past behavior,
through convictions or unadjudicated crimes,
showed a pattern of criminal conduct which
will probably continue to exist in the future.24
On appeal, we will uphold the jury’s finding if,
after reviewing the evidence in the light most
favorable to the State, any rational trier of fact
could find the charged aggravating circumstance beyond a reasonable doubt.25
¶15 Harris admits that the State offered
four separate types of evidence to prove this
aggravating circumstance. All were admissible to show a pattern of violence which was
likely to continue. This Court has upheld use
of both the circumstances of the crime and
unadjudicated offenses to support this aggravating circumstance.26 Common evidence used
to prove that a defendant is a continuing threat
to society includes “the defendant’s history
of violent conduct, the facts of the homicide
at issue, threats made by the defendant, lack
of remorse, attempts to prevent calls for help,
mistreatment of family members and testimony of experts.”27 While Harris claims that,
at best, the State’s evidence shows he was a
danger to Pam, in fact the evidence taken as a
whole shows Harris has a lifelong pattern of
using violence to solve problems and react to
situations which is likely to continue.
¶16 Through Pam, family members, and coworkers, the State offered evidence of ongoing
domestic violence, including Harris’s physical,
verbal and mental abuse of Pam, which lasted
throughout the course of their relationship.
Among other things, Harris dislocated Pam’s
jaw, kicked her in the face, slammed her legs
in a car door, and pushed and shoved her. Due
to arguments, his drinking, and the threat of
Vol. 78 — No. 20 — 7/28/2007
violence, Pam left Harris between eighty and
100 times during the course of their marriage,
only to return after each episode ended. Some
witnesses also testified that Pam instigated
arguments with Harris, got the better of him
in verbal arguments, and even pushed him.
Harris characterizes all this as evidence of
a dysfunctional marriage. However, where
the evidence conflicts, this Court will not
substitute its judgment regarding the weight
and credibility of the evidence for that of the
jury’s.28
¶17 The State also presented evidence of
other violent episodes in Harris’s life. His own
expert and a brother testified that he had been
in fights as a child and bar fights throughout
his life. Harris claims without citation that
this evidence was inadmissible to support the
continuing threat aggravating circumstance
as no details were given regarding the fights.
He did not object to this testimony at trial and
we review for plain error only. There is none.
Harris himself told Dr. Draper that he had
fought in school, had been expelled for fighting, and got in bar fights. Dr. Draper relied on
this information in forming her opinion, and
was required to testify regarding it if asked on
cross-examination.29 His brother testified about
the beginnings of bar fights he had witnessed,
and about a particular bar fight in which Pam
was involved or present.30 Harris argues that
these episodes have no bearing on his potential
for future dangerousness. On the contrary, Dr.
Draper testified regarding Harris’s emotional
instability and difficulty handling stress, solving problems, and making good choices when
angry. Harris’s propensity for physical fights
bears directly on his probable future reactions
in these circumstances.
¶18 The State offered several episodes from
August, 1999, as the difficulties between Pam
and Harris escalated. On August 15, Pam
called the police from her parents’ house. She
reported Harris was at the family home, had
threatened her, her family, and her co-workers, and she believed he was armed. When
police came, Harris met them in the yard. The
officers asked him to lift up his loose shirt and
turn around, explaining they needed to check
for a weapon. He initially appeared to comply,
hesitated, then ran into the house and locked
the door. The police kicked in the door and
ordered Harris to the floor. When he refused
to comply, they subdued and handcuffed him,
and arrested him for resisting an officer. Subse-
1825
quently, Harris telephoned Pam several times
threatening to kill her. When he left the house
on August 25, he violated the trial court’s
order by moving furniture and Pam’s personal belongings and vandalizing the house.
The act of resisting arrest and death threats
are relevant to Harris’s future dangerousness.
While vandalism, a nonviolent crime, is not
in itself indicative of future danger, under the
circumstances of this case it reflects the pattern
of escalating violence which resulted in the
crimes.
¶19 Harris had no prior convictions, and
only one disciplinary write-up from his years
of incarceration in this case. On April 11 2001,
while awaiting his preliminary hearing in
the Oklahoma County jail, Harris was put on
suicide watch. Officer Hill was required to
make visual contact with Harris through a cell
window every fifteen minutes. Harris blocked
the window with paper, and refused to answer
when Hill knocked on the door and called
his name. As soon as Hill opened the door
and stepped inside the cell, Harris attacked
him. Harris did not try to escape the cell, but
instead punched and kicked Hill and temporarily disabled his radio. He was eventually
subdued by several jailers. Harris asserts this
action has no bearing on the probability that
he constitutes a continuing threat to society.
On the contrary, Harris’s willingness to attack
a jailer, while possibly affected by his mental state, bears directly on his propensity for
future violence.
¶20 In addition to the evidence above, the
State offered the circumstances of the crimes
themselves.31 After explicitly threatening to
kill Pam and Merle Taylor, Harris drove to
the AAMCO shop. He was armed and carried
extra ammunition. When Harris said he needed to talk to Pam, Taylor reminded him he was
not supposed to be at the shop. Harris knocked
Taylor down and shot him twice. He pointed
the gun and shot at other workers in the area.
As they fled, Harris shot Pam, hitting her once.
As he continued to shoot she ran. When she
tripped, he attempted to shoot her in the head,
grazing her scalp. He tried unsuccessfully to
reload the weapon, then pistol-whipped her.
Pam fought back, pinning Harris’s arms in his
shirt, and escaped. Harris then fled the scene.
¶21 Evidence that Harris constitutes a continuing threat to society included ongoing
domestic violence, fighting since childhood,
1826
resisting arrest, death threats, an attack on a
jailer, and the circumstances of the crime. Taking the evidence in the light most favorable
to the State, any rational trier of fact could
find, beyond a reasonable doubt, a pattern of
criminal conduct which will probably continue
to exist in the future. Sufficient evidence was
presented to show there exists a probability
that Harris will constitute a continuing threat
to society.
¶22 In Proposition X Harris claims that
the aggravating circumstance that he would
constitute a continuing threat to society is
unconstitutional on its face and as applied in
Oklahoma. He argues that (a) Oklahoma’s statutory definition does not meet standards set
forth by the United States Supreme Court; and
(b) that, as applied in Oklahoma courts, the
aggravating circumstance is not easily understood and fails to channel the jury’s discretion.
Harris admits that this Court has previously
considered and rejected this claim.32 We do not
reconsider it here.
Issues Relating to Jury Instructions
¶23 In Proposition IV Harris argues the trial
court erred in failing to instruct the jury that,
if convicted of murder and sentenced to life
with the possibility of parole, he would have
to serve 85% of his sentence. Harris faced three
potential sentences: death, life without the
possibility of parole, or life imprisonment. By
statute, any person committing an enumerated
offense on or after March 1, 2000, must serve
85% of the latter sentence before being eligible
to be considered for parole (the 85% Rule).33
This Court held in Anderson v. State that jurors
should be instructed on the 85% Rule in every
case to which it applies.34 The record does not
indicate that Harris asked for an instruction on
the 85% Rule, but he claims that he is entitled
to relief because his jury was not so instructed.
He is mistaken. Harris’s crimes were committed on September 1, 1999. On its face, the 85%
Rule does not apply here. This proposition is
denied.
¶24 In Proposition VI Harris argues that
the uniform jury instruction on mitigating
circumstances, OUJI-CR (2d) 4-78, which was
given to his jury, unconstitutionally limited
the jury’s ability to consider his mitigating evidence. A capital defendant “must be allowed
to introduce any relevant mitigating evidence
regarding his character or record and any of
the circumstances of the offense.”35 “It is settled
Vol. 78 — No. 20 — 7/28/2007
that a defendant may present in mitigation
any aspect of his record or character, and any
circumstances of the crime that could possibly
convince a jury that he is entitled to a sentence
less than death. Likewise, a defendant is also
entitled to present any evidence that may assist
in rebutting an aggravating circumstance.”36
When considering whether to recommend the
death penalty, jurors must look at both the circumstances of the crime and the personal characteristics and propensities of the defendant.37
The reference to a defendant’s characteristics
will necessarily include evidence which may
be mitigating in nature, but will not extenuate
or reduce his moral culpability for the crime.
Given this settled law, we must agree with the
Tenth Circuit’s conclusion that any attempt to
limit a jury’s consideration of mitigating evidence only to that evidence which may make
a defendant less guilty, or the crime less horrible, is unconstitutional.38 This is true whether
the attempted limitation occurs through
instruction or argument.
¶26 This Court is troubled, however, by
the consistent misuse of the language in this
instruction in the State’s closing arguments.
This Court noted in Frederick v. State that the
prosecutor could argue mitigating evidence
did not reduce a defendant’s moral culpability
or blame.42 However, we did not intend to suggest that prosecutors could further argue that
evidence of a defendant’s history, characteristics or propensities should not be considered
as mitigating simply because it does not go
to his moral culpability or extenuate his guilt.
This would be an egregious misstatement of
the law on mitigating evidence. After careful
consideration, this Court has determined that
an amendment to the language of the instruction will clarify this point, and discourage
improper argument. We emphasize that the
language of the current instruction itself is not
legally inaccurate, inadequate, or unconstitutional. Cases in which the current OUJI-CR
(2d) 4-78 has been used and applied are not
subject to reversal on this basis.
¶25 Harris argues that the plain language of
the uniform instruction’s first sentence itself
limits the jury’s consideration of mitigating
evidence. That sentence reads: “Mitigating
circumstances are those which, in fairness,
sympathy, and mercy, may extenuate or reduce
the degree of moral culpability or blame.”39
Harris admits this Court has rejected this line
of argument.40 However, he suggests that the
language is ambiguous at best, and, combined
with prosecutorial argument, foreclosed the
jury’s consideration of mitigating evidence.
He failed to object to either the instruction or
argument at trial. Reviewing for plain error,
we find none. We do not find that the current
uniform jury instruction prohibits jurors from
considering mitigating evidence. One prosecutor did consistently argue in closing that
jurors should not consider Harris’s second
stage evidence as mitigating, since it did not
extenuate or reduce his guilt or moral culpability. This argument improperly told jurors
not to consider Harris’s mitigating evidence.
However, in final closing a second prosecutor
invited jurors to consider all Harris’s mitigating evidence, weigh it against the aggravating
circumstances, and find that the death penalty was appropriate. The jury was properly
instructed on the definition of mitigating evidence, the evidence Harris presented, and its
duties. For that reason, the initial prosecutorial
argument was harmless.41
¶27 In conjunction with this case, the Court
will refer this issue to the Oklahoma Uniform Jury Instruction Committee (Criminal)
for promulgation of a modified jury instruction defining mitigating circumstances in capital cases. To delineate the various purposes
of mitigating evidence, this Court suggests
including both (a) that mitigating circumstances may extenuate or reduce the degree
of moral conduct or blame, and separately, (b)
that mitigating circumstances are those which
in fairness, sympathy or mercy would lead
jurors individually or collectively to decide
against imposing the death penalty.43
Vol. 78 — No. 20 — 7/28/2007
¶28 The uniform jury instruction given in
this case did not unconstitutionally limit the
jury’s ability to consider mitigating evidence.
The prosecutor’s improper argument on this
issue was cured by further argument and
instruction. Harris’s claim for relief is denied.
However, this Court finds that the current
uniform jury instruction defining mitigating
circumstances, OUJI-CR (2d) 4-78, should be
modified to clarify the constitutional scope of
mitigating evidence and discourage improper
argument.
Ineffective Assistance of Counsel
¶29 Harris claims in Proposition I that trial
counsel was ineffective for failing, before trial
began, to seek a determination that he was
mentally retarded and thus ineligible for the
1827
death penalty. To prevail on this claim, Harris
must show that counsel’s performance was
so deficient that he did not have counsel as
guaranteed by the Sixth Amendment, and that
the deficient performance created errors so
serious as to deprive him of a fair trial with
reliable results.44 We measure trial counsel’s
performance against an objective standard of
reasonableness under prevailing professional
norms.45 There must be a reasonable probability that, without counsel’s errors, the jury
would have concluded that a death sentence
was not supported by the balance of aggravating and mitigating circumstances.46 “A reasonable probability is one sufficient to undermine
confidence in the outcome.”47 We give great
deference to trial counsel’s strategic decisions,
considering the choices made from counsel’s
perspective at the time.48 We will presume
counsel’s conduct was professional and could
be considered sound strategy.49 This Court will
not find counsel ineffective if we find that Harris was not prejudiced by counsel’s actions or
omissions.50
¶30 A capital defendant who wishes to claim
mental retardation must raise that claim with
the trial court before the trial begins.51 A threshold requirement for such a claim is one IQ test
of 70 or below; such a test will not itself guarantee a finding of mental retardation but may
begin the process by which the court determines whether a defendant is mentally retarded.52 Harris had two IQ test scores, obtained
during the pretrial process, of 66 and 68.53
He complains that counsel did not use these
scores to initiate this process and attempt to
determine whether he was mentally retarded
before trial began. Harris argues that, given
his test scores, if counsel had asked for a hearing to determine mental retardation the trial
court would have been required to hold that
hearing. At that hearing Harris might or might
not have been found mentally retarded, but if
he were found to be retarded, he would avoid
the death penalty. Thus, Harris claims, he had
nothing to lose and everything to gain by raising the issue, and counsel was ineffective for
failing to do so.
¶31 Harris cannot show he was prejudiced
by counsel’s failure. To prevail on a pretrial
claim of mental retardation, Harris would
have to show (1) significantly subaverage
intellectual functioning; (2) manifested before
the age of 18; (3) accompanied by significant
limitations in adaptive functioning in at least
1828
two of nine enumerated skill areas.54 All the
evidence in the record, including the evidence
from the first trial and competency hearing,
indicates that Harris could not meet this test.
Despite these two IQ scores, all Harris’s other
IQ scores were over 70. All Harris’s experts,
including the ones who testified at his first trial
and competency hearing, considered these
scores along with Harris’s other characteristics
and concluded he was not mentally retarded.55
Harris’s expert, Dr. Draper, testified at his trial
that he was not mentally retarded. She and
other experts stated in this and other proceedings that Harris was “slow” or of low intelligence, but all agreed that his employment
history, aptitude as a transmission mechanic,
and other characteristics were not those of a
mentally retarded person.
¶32 Harris argues that this Court cannot dispose of this claim using the prejudice analysis
above. He admits the test for ineffective assistance of counsel is whether there is a reasonable probability that, but for counsel’s unprofessional errors, the results of the trial would
have been different.56 Regarding this claim,
the different result would have been a finding
of mental retardation and ineligibility for the
death penalty. Thus, the Court is required to
review the record to see whether, had counsel requested a hearing, Harris would have
prevailed on his claim of mental retardation.
There is no support in the record for such a
conclusion. However, Harris argues that only a
jury, not this Court, may make a determination
of a defendant’s possible mentally retarded
status under any circumstances. Harris has
misunderstood this Court’s jurisprudence on
this issue. In a series of cases involving retroactive capital post-conviction procedures, this
Court has declined to make an initial finding
of fact regarding mental retardation, remanding for jury determination the question of
whether a capital defendant, convicted and
currently on Death Row, is mentally retarded.57
That is not the issue here. The issue is whether,
on this record, Harris’s counsel was ineffective
for failing to ask for a pretrial determination
of mental retardation. Nothing in this record
shows that, had counsel made that request,
evidence would have shown by a preponderance of the evidence that Harris was mentally
retarded. There is a great deal of evidence in
the record to show otherwise, including the
opinion of several experts who testified that
Harris was not mentally retarded. We cannot
Vol. 78 — No. 20 — 7/28/2007
conclude there was a reasonable probability
that, but for counsel’s omission, the results of
this resentencing proceeding would have been
different.
¶33 In Proposition II Harris claims that trial
counsel was ineffective for failing to present
evidence of diminished mental capacity and
probable mental illness. This evidence was
available to counsel or easily discoverable,
and much of it was presented at Harris’s first
trial. Trial counsel has a duty to investigate and
present relevant mitigating evidence.58 However, where counsel makes an informed decision
to pursue a particular strategy to the exclusion of other strategies, this informed strategic choice is “virtually unchallengeable”.59
We have noted that among counsel’s basic
duties is “to make informed choices among
an array of alternatives, in order to achieve
the best possible outcome for the client.”60 The
United States Supreme Court has found
counsel ineffective where the failure to
thoroughly investigate and present mitigating
evidence “resulted from inattention,
not reasoned strategic judgment.”61
¶34 At Harris’s resentencing trial, defense
counsel presented mitigating evidence through
Harris’s sister, brother, former co-worker and
employer, son-in-law, and two daughters. His
most extensive mitigating evidence was presented through Dr. Draper, an expert witness
in developmental analysis. Dr. Draper testified extensively regarding the developmental
processes that led Harris to commit these
crimes. She began by discussing his tumultuous and abusive childhood. She described
his medical problems throughout childhood
as well as his learning disabilities, low intelligence, and academic and social problems in
school, including schoolyard fights. Dr. Draper
described how, during Harris’s teenage years,
his father taught him to be a transmission
mechanic but also taught him to use drugs
and alcohol regularly. Dr. Draper discussed the
very negative effect on Harris of his mother’s
lingering death from cancer, the death of his
grandparents, and the family’s separation. She
testified regarding Harris’s brief first marriage.
Dr. Draper noted that Harris’s first wife had
alleged he was abusive and filed for a victim’s
protective order and divorce, but said Harris’s
first wife told her that Harris did not abuse
her and she had said otherwise because she
wanted to leave him. Dr. Draper told jurors of
Harris’s attempt at suicide when his first wife
Vol. 78 — No. 20 — 7/28/2007
left him. She explained that for several years
Harris and Pam had custody of his daughters,
and described his love for his daughters as
well as his inability to engage emotionally as
a parent. She described his relationship with
Pam, including a mutual pattern of verbal and
emotional abuse. Dr. Draper showed jurors
how Harris depended on Pam emotionally
and professionally.
¶35 Throughout her testimony Dr. Draper
emphasized that Harris’s chaotic and troubled
background resulted in extreme emotional
instability. She discussed how his low intelligence and chronic substance abuse contributed
to his inability to handle stress or resolve problems. She described Harris’s reliance on Pam,
and his feelings of despair and devastation
when Pam left him. Dr. Draper also emphasized Harris’s anger at his situation, and at
the loss of his tools, and his inability to control
or appropriately express his anger. She testified that this inability was caused by Harris’s
immaturity, emotional instability, poor judgment, and confusion. She noted his expressions
of remorse for Merle Taylor’s death, while
agreeing that Harris still blamed Pam for leaving him and causing him to commit the crimes.
She discussed psychological methods of predicting future violence, and testified that in a
controlled environment, medicated, without
access to controlled substances and without
a romantic partner, she did not believe Harris
would be dangerous. Dr. Draper testified that
Harris had been diagnosed as mentally ill and
was on psychotropic medications in jail. She
stated that she did not further explore the area
of mental illness because those diagnoses had
been made after the crimes occurred, and her
focus was on explaining Harris’s actions and
symptoms of underlying difficulties which
led to the crimes. However, her observations
of Harris’s behavior were consistent with the
diagnoses.
¶36 After Dr. Draper testified, counsel
attempted to have a representative from the
jail testify regarding the medications Harris
took for his mental conditions. Counsel failed
to give notice of this testimony to the State.
The trial court noted that mere evidence Harris was on medication would encourage jury
speculation regarding Harris’s mental condition. Harris argues that this attempt shows
counsel realized he had erred in failing to present evidence of mental illness.
1829
¶37 Harris complains that counsel failed to
present extensive evidence regarding his mental state and diagnoses of mental illness. Most
of this evidence was presented at Harris’s
first trial or his competency proceedings, and
was readily available to counsel. A significant
portion of this evidence was presented at
the first stage of Harris’s original trial, to
argue his mental state could not support a
finding of malice, rather than as evidence in
mitigation. After the crimes, questions were
raised regarding Harris’s competency. At one
point he was sent to Eastern State Hospital,
received treatment and medication, and was
declared competent. Doctors representing the
court, the State, and the defense examined
Harris throughout the pretrial proceedings.
He received several diagnoses of mental illness: bipolar disorder with psychotic features,
schizo-affective disorder, depressive with psychotic features. Experts agreed at the very least
Harris was clinically depressed. They all also
noted his low intelligence. One expert for the
State, and the doctors at Eastern State Hospital, suspected Harris was either malingering
or exaggerating his mental condition. One
defense expert testified that, based on his contact with Harris shortly after the crimes, Harris
was probably suffering from mental illness at
the time of the crimes. Nobody believed that
Harris’s mental illness, even if present when
the crimes were committed, rendered him
legally insane; the experts agreed that Harris
knew right from wrong and understood the
consequences of his actions. Harris’s experts
described the connection his mental illness and
chronic substance abuse may have had with
the crimes. They testified that as a consequence
of his mental state, Harris was low functioning and emotionally unstable, unable to solve
problems or take action towards goals, highly
agitated and angry. At the first trial, Harris’s
expert on future dangerousness testified that
he could not say Harris would not be a danger
to society; he did say that, in a controlled environment and with medication, Harris would
present less danger than otherwise.
¶38 After thoroughly considering the evidence which was presented at Harris’s resentencing trial, and the evidence which was presented earlier and could have been presented,
this Court concludes that counsel was not ineffective. Counsel was aware of the evidence of
mental condition and status. Rather than rely
on it to persuade jurors that Harris’s mental
1830
state and after-diagnosed mental condition
were mitigating circumstances, counsel chose
a different path. He called Dr. Draper to testify
regarding Harris’s development over his life.
This evidence was comprehensive. It included
Harris’s troubled and abusive childhood, his
low IQ and trouble in school, his difficulty
with marital relationships, his relationships
with his family and daughters, his dependency on Pam, the mutually abusive nature
of that relationship. Dr. Draper also discussed
Harris’s chronic substance abuse which began
when he was a teenager with his father, his
poor judgment, anger and inability to solve
problems, and his extreme emotional instability. She also discussed the likelihood that,
based on his past behavior and mental state,
Harris would be a danger in the future. While
Harris’s specific diagnoses of mental illness
were not presented to the jury, jurors were told
he had been diagnosed as mentally ill. Those
diagnoses were made after the crimes, and Dr.
Draper did describe the highly emotional mental state Harris was in at the time of the crimes.
Dr. Draper used all this evidence to explain
why Harris could not accept his circumstances
and resorted to murder.
¶39 Harris claims that the prejudice from
this decision is evident. At the first trial, jurors
heard much of this evidence. During deliberations, they asked a question about the type of
prison in which Harris might serve a sentence
of imprisonment. The trial court’s answer to
this question, which was inaccurate as a matter
of law, resulted in the case’s reversal and this
resentencing trial.62 Harris contends this indicates that his first jury seriously considered
imposing a sentence of less than death, and
claims that, had the evidence been presented
again, his resentencing jury would have done
the same. This Court cannot speculate as to
why Harris’s first jury asked their question,
or what its sentencing intent might have been.
Counsel chose to provide Harris’s resentencing jury with a thorough picture of his life,
intelligence, and emotional state, including
his anger, grief and despair immediately preceding the crimes. Through Dr. Draper, jurors
heard evidence which encompassed or incorporated some of the evidence presented at the
first trial. We will not second-guess counsel’s
reasoned strategic judgment. Counsel’s choice
of mitigating evidence did not amount to ineffective assistance.
Vol. 78 — No. 20 — 7/28/2007
¶40 In Proposition XI Harris raises several claims of ineffective assistance of counsel.
He fails to show any prejudice from counsel’s alleged omissions, and we will not find
counsel was ineffective.
¶41 Harris first notes that counsel failed to
object to errors raised in previous propositions,
and asks that those be reviewed for ineffective assistance of counsel. As we have found
no error in the previous propositions, counsel
cannot be ineffective for failing to raise objections to issues contained therein.63 Harris also
claims counsel failed to conduct a thorough
and independent investigation of his case. We
found in Propositions I and II that counsel was
not ineffective for failing to claim Harris was
mentally retarded, or for failing to present the
evidence of mental status and mental illness
raised in his first trial and competency proceedings. Relying on the issues raised in Propositions I and II, Harris claims that counsel
failed to independently investigate the case as
previously developed in order to satisfactorily
conclude that the extant evidence was viable
and reliable. This appears to be speculation, as
the record does not support this allegation.
¶42 Harris also claims that counsel failed
to present evidence directly bearing on the
continuing threat aggravating circumstance.
In fact, Dr. Draper did discuss methods for
predicting future dangerousness, and gave
her opinion that Harris would not be a future
danger to society. Harris argues that counsel
should have presented an expert on risk assessment, who could have provided an accurate
and scientifically sound analysis of the exact
likelihood that Harris would be a future danger. The experts who testified at Harris’s first
trial, and Dr. Draper, all testified that he was
in fact likely to pose a risk of future danger.
Harris’s experts testified that, under particular
circumstances likely to be found in prison,
that risk was significantly lessened, but they
all agreed that Harris posed more risk to the
general population than the average person.
Given this evidence, we will not say counsel
was unreasonable for choosing not to stress the
issue of Harris’s potential for danger to society
by using risk assessment evidence.64
¶43 This proposition is accompanied by an
Application for Evidentiary Hearing. To support his claim that counsel did not conduct a
thorough independent investigation, Harris
provides an affidavit with a psychological
Vol. 78 — No. 20 — 7/28/2007
evaluation conducted after the trial ended. As
he notes in his brief, this evaluation is consistent with other psychological evaluations
which were available to counsel. To support
his claim that counsel failed to present evidence bearing on the continuing threat aggravating circumstance, Harris offers an affidavit
containing a risk assessment profile. This profile reaches a similar conclusion to that of Dr.
Draper and other experts — in a controlled,
structured environment, medicated, without
access to controlled substances, and without a
romantic relationship such as that with Pam,
Harris poses little threat to society. The application for evidentiary hearing and supplemental materials do not contain sufficient information to show this Court by clear and convincing evidence there is a strong possibility trial
counsel was ineffective for failing to use or
identify the evidence.65 Harris’s Application
for Evidentiary Hearing is denied.
Cumulative Error
¶44 In Proposition XII Harris claims that
the accumulation of errors in the preceding
propositions requires relief. In Proposition
III, we found the trial court erred in failing to
bring the jury into open court when a question
was presented in deliberations, but that error
was harmless. In Proposition VI we found
that error in argument was cured by instructions. Even taken together, these errors do not
require relief.66
Mandatory Sentence Review
¶45 We must determine (1) whether the
sentences of death were imposed under the
influence of passion, prejudice, or any other
arbitrary factor, and (2) whether the evidence
supports the jury’s findings of aggravating
circumstances.67 Upon review of the record,
we cannot say the sentences of death were
imposed because the jury was influenced
by passion, prejudice, or any other arbitrary
factor.
¶46 The jury was instructed on and found
the existence of two aggravating circumstances: (1) the defendant knowingly created a great
risk of death to more than one person, and (2)
there existed a probability that Harris would
commit criminal acts of violence which would
constitute a continuing threat to society. Harris
presented evidence that he was abused and
neglected as a child, suffered the death of his
mother as a teenager, had low intelligence, was
1831
a chronic substance abuser, was mentally ill,
and was very dependent on Pam Harris; that
he had no prior convictions, had no misconduct
citations in prison and only one while incarcerated in jail, had a good prison record and could
live within prison society; that his family loved
and needed him and he was remorseful for his
actions. The jury was specifically instructed
on thirteen mitigating factors, and invited to
consider other mitigating evidence they might
find.68 Upon our review of the record, we find
that the sentences of death are factually substantiated and appropriate.
AN APPEAL FROM THE DISTRICT
COURT OF OKLAHOMA COUNTY
THE HONORABLE VIRGIL C. BLACK,
DISTRICT JUDGE
¶47 Jimmy Dean Harris was tried by jury
and convicted of Murder in the First Degree,
in the District Court of Oklahoma County,
Case No. CF-1999-5071, resentenced to death,
and appeals. The Sentence of the District
Court is AFFIRMED. Pursuant to Rule 3.15,
Rules of the Oklahoma Court of Criminal Appeals,
Title 22, Ch.18, App. (2007), the MANDATE is
ORDERED issued upon the delivery and filing of this decision.
ATTORNEYS AT TRIAL
James T. Rowan, 228 Robert S. Kerr Ave. Ste
220, Oklahoma City, Oklahoma 73102, Attorney For Defendant,
C. Wesley Lane II, District Attorney, Patricia L. High, Assistant District Attorney, 505
County Office Building, 320 Robert S. Kerr
Ave., Oklahoma City, OK 73102, Attorneys For
The State.
ATTORNEYS ON APPEAL
Michael D. Morehead, Kathleen Smith, Appellate Defense Counsel, Capital Direct Appeals
Division, Oklahoma Indigent Defense System,
P.o. Box 926, Norman, Ok 73070, Attorneys
For Appellant,
W.A. Drew Edmondson, Attorney General
Of Oklahoma, Preston Saul Draper, Assistant
Attorney General, 313 N.E. 31st St., Oklahoma
City, Ok 73105, Attorneys For Appellee.
OPINION BY: CHAPEL, J.
LUMPKIN, P.J.: CONCUR IN RESULTS
C. JOHNSON, V.P.J.: CONCUR
A. JOHNSON, J.: CONCUR
LEWIS, J.: CONCUR
1832
1. Harris v. State, 2004 OK CR 1, 84 P.3d 731. Harris was also convicted of Shooting with Intent to Kill and Assault and Battery with
a Dangerous Weapon, and sentenced to life and ten years imprisonment. These convictions and sentences were upheld on appeal.
2. Cohee v. State, 1997 OK CR 30, 942 P.2d 211, 213.
3. Cohee, 942 P.2d at 214-15.
4. OUJI-CR (2d) 1-9, 10-8A.
5. 12 O.S.2001, § 577.2.
6. 2003 OK CR 12, 72 P.3d 40, 46.
7. Hanson, 72 P.3d at 46.
8. Van White v. State, 1988 OK CR 47, 752 P.2d 814, 820-21.
9. Pickens v. State, 2001 OK CR 3, 19 P.3d 866, 881. In Pickens, private
conversations with two jurors during voir dire were not recorded.
The Court found that, as no errors were alleged during jury selection
and the potential jurors were excused for cause, no error was shown
and our ability to conduct the mandatory sentence review was not
affected.
10. Pickens, 19 P.3d at 881. See also Mooney v. State, 1999 OK CR 34,
990 P.2d 875, 884 (failure to transcribe competency hearing was cured
when an evidentiary hearing determined application for competency
had been denied); Cannon v. State, 1998 OK CR 28, 961 P.2d 838, 848
(failure to transcribe reading of instructions to the jury not error where
written instructions are included in record on appeal); Parker v. State,
1994 OK CR 56, 887 P.2d 290, 294 (failure to transcribe bench conferences did not require reversal);
11. Van White, 752 P.2d at 821.
12. Pickens, 19 P.3d at 881.
13. 21 O.S.2001, § 701.13.
14. The State argues that there is no record Harris objected to these
instructions, so the issue is waived. The lack of record is Harris’s point.
As the Court cannot determine from this record whether Harris had an
opportunity to object, we will not consider the claim waived.
15. Instructions 1, 3, 6, 10, 16; O.R. IX, 1598, 1601, 1604, 1611, 1619.
16. Instructions 2, 4, 5, 7; O.R. IX, 1599, 1602, 1603, 1605.
17. Glossip v. State, 2001 OK CR 21, 29 P.3d 597, 605.
18. Cohee, 942 P.2d at 215 (trial court should attempt to answer
juror questions as fully as the law permits).
19. 22 O.S.2001, § 894.
20. Welch v. State, 1998 OK CR 54, 968 P.2d 1231, 1245.
21. Cannon, 961 P.2d at 848 (ability to review not impeded where
Court can determine from the record what instructions were given
to jury).
22. See, e.g., DeRosa v. State, 2004 OK CR 19, 89 P.3d 1124, 1151-52;
Conover v. State, 1997 OK CR 6, 933 P.2d 904, 920; Ledbetter v. State, 1997
OK CR 5, 933 P.2d 880, 890-91. Harris does not claim that the victim
impact evidence itself was improper, other than the recommendation
of punishment.
23. Hogan v. State, 2006 OK CR 19, 139 P.3d 907, 929-30, cert. denied,
__ U.S. __, 127 S.Ct. 944, 166 L.Ed.2d 751 (2007). I dissented on this
issue in Hogan, and yield my vote on the basis of stare decisis.
24. Malicoat v. State, 2000 OK CR 1, 992 P.2d 383, 397.
25. Warner v. State, 2006 OK CR 40, 144 P.3d 838, 878; DeRosa, 89
P.3d at 1153 ; Malicoat, 992 P.2d at 397.
26. See, e.g., Hooper v. State, 2006 OK CR 35, 142 P.3d 463, 171, and
cases cited therein. I continue to believe that evidence of unadjudicated offenses should not be admitted to support the continuing threat
aggravating circumstance. I find that, even without this evidence, sufficient evidence supports the finding of this aggravating circumstance
beyond a reasonable doubt.
27. Malicoat, 992 P.2d at 397.
28. Malicoat, 992 P.2d at 397. While the Court must independently
assess the record evidence and determine that such evidence supports
the jury’s finding of an aggravating circumstance, Battenfield v. State,
1991 OK CR 82, 816 P.2d 555, 565, this merely reflects the appropriate
standard of review. We will not substitute our judgment for that of the
jury’s where sufficient evidence is present.
29. 12 O.S.2001, § 2705.
30. Mark Harris testified that he had not necessarily seen Harris
commit acts of violence because “I usually leave if it gets that bad.”
31. I have disagreed with the use of the circumstances of the crime
to support this aggravating circumstance, but yield to the majority.
Hooper v. State, 1997 OK CR 64, 947 P.2d 1090, 1108 n. 58; Cannon v.
State, 1995 OK CR 45, 904 P.2d 89, 106 n. 60. In addition to the circumstances of the crime and unadjudicated offenses, I find there is sufficient other evidence of continuing threat to support the jury’s finding
of this aggravating circumstance.
32. See, e.g., Warner, 144 P.3d at 879; Myers v. State, 2006 OK CR 12,
133 P.3d 312, 333-34; Wackerly v. State, 2000 OK CR 15, 12 P.3d 1, 16;
Malicoat, 992 P.2d at 400.
33. 21 O.S.2001, §§ 12.1, 13.1.
34. Anderson v. State, 2006 OK CR 6, 130 P.3d 273, 282.
Vol. 78 — No. 20 — 7/28/2007
35. California v. Brown, 479 U.S. 538, 541, 107 S.Ct. 837, 839, 93
L.Ed.2d 934 (1987) (citations omitted); Eddings v. Oklahoma, 455 U.S.
104, 110, 102 S.Ct. 869, 874, 71 L.Ed.2d 1 (1982); Lockett v. Ohio, 438 U.S.
586, 604, 98 S.Ct. 2954, 2964, 57 L.Ed.2d 973 (1978).
36. Fitzgerald v. State, 2002 OK CR 31, 61 P.3d 901, 903 (citation
omitted). See also Coddington v. State, 2006 OK CR 34, 142 P.3d 437, 460;
Fitzgerald v. State, 1998 OK CR 68, 972 P.2d 1157, 1168; Skipper v. South
Carolina, 476 U.S. 1, 4, 106 S.Ct. 1669, 1670-71, 90 L.Ed.2d 1 (1986).
37. Woodson v. North Carolina, 428 U.S. 280, 304, 96 S.Ct. 2978, 1991,
49 L.Ed.2d 944 (1976) (opinion of Stewart, Powell, and Stevens, JJ.);
Gregg v. Georgia, 428 U.S. 153, 197, 96 S.Ct. 2909, 2936, 49 L.Ed.2d 859
(1976) ((opinion of Stewart, Powell, and Stevens, JJ.).
38. Le v. Mullin, 311 F.3d 1002, 1017 (10th Cir. 2002).
39. OUJI-CR (2d) 4-78, O.R. 1607.
40. Primeaux v. State, 2004 OK CR 16, 88 P.3d 893, 909-10; Williams
v. State, 2001 OK CR 9, 22 P.3d 702, 727
41. 21 O.S.2001, § 3001.1; Le, 311 F.3d at 1018.
42. 2001 OK CR 34, 37 P.3d 908, 949.
43. As Harris notes, OUJI-CR (2d) 4-79, describing possible mitigating circumstances, was patterned after a similar New Mexico jury
instruction. The language in the New Mexican instruction corresponding to OUJI-CR (2d) 4-78 reads: “A mitigating circumstance is any
conduct, circumstance or thing which would lead you individually or
as a jury to decide not to impose the death penalty.”
44. Browning v. State, 2006 OK CR 8, 134 P.3d 816, 830, cert. denied,
127 S.Ct. 406 (2006); Wiggins v. Smith, 539 U.S. 510, 521, 123 S.Ct. 2527,
2535, 156 L.Ed.2d 471 (2003); Strickland v. Washington, 466 U.S. 668, 697,
104 S.Ct. 2052, 2069-70, 80 L.Ed.2d 674, 693 (1984).
45. Rompilla v. Beard, 545 U.S. 374, 380, 125 S.Ct. 2456, 2462, 162
L.Ed.2d 360 (2005); Wiggins, 539 U.S. at 521, 123 S.Ct. at 2527.
46. Browning, 134 P.3d at 831.
47. Williams v. Taylor, 529 U.S. 362, 394, 120 S.Ct. 1495, 1513-1514,
146 L.Ed.2d 389 (2000).
48. Rompilla, 545 U.S. at 380-81, 125 S.Ct. at 2462; Wiggins, 539 U.S.
at 523, 123 S.Ct. at 2536; Strickland, 466 U.S. at 689, 104 S.Ct. at 2052;
Hooks v. State, 2001 OK CR 1, 19 P.3d 294, 317.
49. Browning, 134 P.3d at 831; Ryder v. State, 2004 OK CR 2, 83 P.3d
856, 874-75.
50. Williams, 529 U.S. at 393, 120 S.Ct. at 1513 (defendant prejudiced where counsel’s actions deny him a substantive or procedural
right to which he is entitled by law); Strickland, 466 U.S. at 694, 104
S.Ct. at 2052; Hooks, 19 P.3d at 317.
51. Blonner v. State, 2006 OK CR 1, 127 P.3d 1135, 1139-40; State
ex rel. Lane v. The Hon Jerry D. Bass, 2004 OK CR 14, 87 P.3d 629, 633;
Murphy v. State, 2002 OK CR 32, 54 P.3d 556, 567.
52. Blonner, 127 P.3d at 1139.
53. All the experts for both the State and defense agreed that these
IQ test results, taken during pretrial proceedings and while there were
doubts raised as to Harris’s competency, were less reliable than his
other test scores, which were over 70.
54. Murphy, 54 P.3d at 566.
55. One expert did testify at the competency hearing that, based
on the two low scores, he believed he had to say Harris was mildly
mentally retarded, but that was not his conclusion after examining
Harris and he found the scores surprising.
56. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064.
57. See, e.g., Pickens v. State, 2005 OK CR 27, 126 P.3d 612, 616; Lambert v. State, 2005 OK CR 26, 126 P.3d 646, 650; Murphy v. State, 2005 OK
CR 25, 124 P.3d 1198, 1208.
58. Rompilla, 545 U.S. at 380-81, 125 S.Ct. at 2462; Wiggins, 539
U.S. at 523, 123 S.Ct. at 2536; Williams, 529 U.S. at 393, 120 S.Ct. at
1513; Strickland, 466 U.S. at 694, 104 S.Ct. at 2052. See also Garrison v.
State, 2004 OK CR 35, 103 P.3d 590, 619 (appellate counsel’s failure to
adequately participate in evidentiary hearing on ineffective assistance
of trial counsel, waiving the issue, was itself ineffective where trial
counsel had failed to investigate or present mitigating evidence).
59. Jones v. State, 2006 OK CR 5, 128 P.3d 521, 535, cert. denied, 127
S.Ct. 404, quoting Strickland, 466 U.S. at 690-91, 104 S.Ct. at 2066. See
also Thacker v. State, 2005 OK CR 18, 120 P.3d 1193, 1995 (presumption
of sound trial strategy has highly deferential review).
60. Jones, 128 P.3d at 535.
61. Wiggins, 539 U.S. at 526, 123 S.Ct. at 2537.
62. Harris, 84 P.3d at 757.
63. Williams, 529 U.S. at 393, 120 S.Ct. at 1513; Strickland, 466 U.S.
at 694, 104 S.Ct. at 2052.
64. Jones, 128 P.3d at 535; Strickland, 466 U.S. at 690-91, 104 S.Ct.
at 2066.
65. Rule 3.11(B)(3)(b), Rules of the Oklahoma Court of Criminal
Appeals, Title 22, Ch.18, App. (2007).
66. Browning, 134 P.3d at 846.
67. 21 O.S.2001, § 701.13(C).
68. Harris had no prior convictions; had no reported misconduct
as a Department of Corrections inmate; had a lifelong addiction to
drugs and alcohol beginning at age 14; Harris was continuously confined from September 9, 1999, to the date of trial, but had only one
misconduct write-up in the Oklahoma County Jail; on the morning
of the crimes Harris was overwhelmed by the powerful emotions
of anger and fear of life without Pam Harris; was capable of living
cooperatively within prison society; was diagnosed with a low I.Q.
which made it difficult for him to solve problems; Harris has a sister
and brother who love him; has daughters who love and need him; is
remorseful for what he did and the pain he caused the Taylor family
and his own family; his mental condition, alcoholism and drug abuse
combined with strong emotions led to his decision to bring a gun
to AAMCO Transmission and murder Taylor; as a young child Harris was beaten by his father and neglected by both parents; Harris’s
mother, the one adult who consistently loved him, died of cancer
when he was a teenager. Instruction No. 9
Feel like you’ve painted yourself into a corner?
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1 (800) 364 - 7886
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Vol. 78 — No. 20 — 7/28/2007
1833
TheUNITED
Oklahoma BarSTATES
Journal
NOTICE OF VACANCY for
MAGISTRATE JUDGE
UNITED STATES DISTRICT COURT FOR
THE NORTHERN DISTRICT OF OKLAHOMA
Vol. 77 — No. 26 — 9/30/2006
The United States District Court for the Northern District of Oklahoma announces a vacancy for
a full-time United States Magistrate Judge in Tulsa,
Oklahoma beginning in fall or winter, 2007. The basic
jurisdiction of the U.S. Magistrate Judge is specified
in 28 U.S.C. § 636. Duties include: (1) preliminary
proceedings in criminal cases such as initial appearances and arraignments, detention and bail hearings,
preliminary hearings and receipts of reports of grand
juries; (2) trial and disposition of misdemeanor cases;
(3) various pretrial and evidentiary proceedings as
may be delegated by the Judges of the District Court;
and (4) when specifically designated by a Judge of the
District Court and, upon consent of the parties, any
or all proceedings in a jury or non-jury trial of a civil
action. The appointment of the full-time Magistrate
Judge will be made by the Court for a term of 8 years
from a list of qualified applicants recommended by a
Merit Selection Panel to be composed of attorneys and
lay members from the Northern District. To be qualified for appointment, applicants must:
1. B
e a member, and have been for at least 5 years, in
good standing of the Bar of the highest court of a
state, the District of Columbia, the Commonwealth
of Puerto Rico, or the Virgin Islands of the United
States;
2. H
ave engaged in the active practice of law for a
period of at least 5 years (with some substitutes
authorized);
1834
1
3. Be competent to perform all the duties of the office; be of good moral character; be emotionally
stable and mature; be committed to equal justice
under the law; be in good health; be patient and
courteous; and be capable of deliberation and
decisiveness;
4. Be less than 70 years of age;
5. N
ot be related to a judge of the United States District Court; and
6. Undergo FBI and IRS investigations.
Application forms and further information on salary, benefits, hours, etc. may be obtained by
contacting Mr. Phil Lombardi, Clerk of the Court,
(918)699-4700. Application forms may also be obtained on the Court’s website at www.oknd.uscourts.
gov.
An original and 7 copies of an application should be
submitted in a sealed envelope not later than
July 31, 2007, to:
Chief Judge Claire V. Eagan
United States District Court
333 West 4th Street, Room 411
Tulsa, Oklahoma 74103
All applications will be held in strict confidence.
The United States District Court is an equal
opportunity employer.
Vol. 78 — No. 20 — 7/28/2007
Court of Civil Appeals Opinions
Manner and Form of Opinions in the Appellate Courts;
See Rule 1.200, Rules — Okla. Sup. Ct. R., 12 O.S. Supp. 1996 (1997 T. 12 Special Supplement
IN THE SUPREME COURT OF THE STATE
OF OKLAHOMA
DONE BY ORDER OF THE SUPREME
COURT this 20th day of June, 2007.
Wednesday, June 20, 2007
The following cases are assigned to the Court
of Civil Appeals Oklahoma City, Divisions 1
and 3. The judges serving in the Oklahoma
City Divisions are Carol M. Hansen, Glenn D.
Adams, Larry E. Joplin, Kenneth L. Buettner,
E. Bay Mitchell, III and Robert Dick Bell. The
judges sit in three-judge panels which rotate
periodically, but all assigned cases will be
decided by three of the above named judges.
Any party may seek disqualification of any
judge pursuant to Okla.Sup.Ct.R. 1.175, 12
O.S.2001, Ch. 15, App. 1 and 20 O.S. 2001 §§
30.3, 1401 and 1402.
103,305Kakkanatt v. OK Employment Security Commission.
/s/
James R. Winchester
CHIEF JUSTICE
Thursday, June 28, 2007
102,923Tanksley v. Tanksley.
103,148Bray v. Dept of Public Safety.
103,369 Stinson v. Voyager Indemnity Ins
Co.
103,475Edwards v. Edwards aka Medlin.
103,603Rodriquez v. Johnston Port 33 et al.
103,907Sadler v. Unit Drilling Co. et al.
104,001Minar et al v. State of Oklahoma.
103,620Wilbanks v. Okmulgee Co. Family
Resources Center, Inc. & WCC.
104,216Betts Telecom Oklahoma, Inc. et al v.
Oklahoma Tax Commission.
103,713Loeffler, et al v. Gomes, et al.
104,218Redwine Resources Inc. v. Predator
Technologies, LLC.
103,999Hogan v. Bob Pound Drilling Inc. &
WCC.
104,038Wilco Machine & Fab Inc. v. Poahway
& WCC.
104,358Norman Regional Hospital v. Johnson & WCC.
104,582Perez v. Enid Public Schools, et al.
104,664Rox Petroleum, LLC v. New Dominion, LLC et al.
104,676Equity Insurance Co. v. Garrett et al.
104,694Williams v. David Stanley Dodge,
LLC.
The proceedings are to be governed by Oklahoma Supreme Court Rules, Part V, Appeals
Assigned to Court of Civil Appeals. 12 O.S.
2001 Ch. 15, App. 1. Until the Court of Civil
Appeals has made its final disposition, all
motions, petitions and other paperwork shall
be filed with the Clerk of the Supreme Court
who serves ex officio as the clerk of the Court
of Civil Appeals room B-2, State Capitol, Oklahoma City, Oklahoma, 73105.
Vol. 78 — No. 20 — 7/28/2007
104,255Drywater v. Sunshine Furniture &
WCC.
104,713Grand Lake Marina Ltd, et al v.
Grand River Dam Authority.
104,722JP Morgan Chase Bank, NA et al v.
Newport et al.
/s/
James R. Winchester
CHIEF JUSTICE
1835
Tuesday, July 17, 2007
103,090In the Matter of the Adoption of Baby
Boy L.
103,571English v. English.
103,613Westec Properties Oklahoma, LLC v.
On-Line Oil, Inc.
COURT this 17th day of July, 2007.
/s/
James E. Edmondson
VICE CHIEF JUSTICE
103,703Gin v. Davenport.
103,717Rush v. Farmers Insurance Exchange,
et al.
103,792Dept of Transportation v. Taylor, et
al.
103,829Jackson County Abstract Co. v. Great
Plains Investments Inc. et al.
103,831XL Specialty Ins. Co. v. Alliance
Resource Holdings Inc. et al.
104,109Glenpool Real Estate Partners LLC v.
Online Oil, Inc.
104,165Jeri A. Bistline v. The Estate of Queen
Ann Niece et al.
104,325City of Tulsa, OK v. Tulsa Fraternal
Order of Police et al.
104,333In the Matter of SA, ST, JT and JT,
deprived children.
104,386Goolsby v. RB & W logistics et al.
104,389In the Matter of AN & CSM, deprived
children.
104,453Sunrise Senior Living Management v.
Carbajal & WCC.
The following cases are assigned to the
Court of Civil Appeals Tulsa, Divisions 2
and 4. The judges serving in the Tulsa Divisions are John F. Reif, Keith Rapp, Jerry L.
Goodman, Jane P. Wiseman, Doug Gabbard,
II and John F. Fischer. The judges sit in threejudge panels which rotate periodically, but all
assigned cases will be decided by three of the
above named judges. Any party may seek disqualification of any judge pursuant to Okla.
Sup.Ct.R. 1.175, 12 O.S. 2001, Ch. 15, App. 1
and 20 O.S. 2001 §§ 30.3, 1401 and 1402.
104,131Johnson v. Tulsa County Sheriff.
104,152Tripp et al v. Bob Howard Dodge,
Inc.
104,211Legion Ins. Co. et al. v. Chubb Indemnity Ins. Co. & WCC.
104,326Keeling v. Carter & Son Excavating &
WCC.
104,329Johnson aka Hamilton v. State of
Oklahoma.
104,732Clawon v. Dept of Public Safety.
104,341Gresham v. KCI Compression Co &
WCC.
104,737Dye et al v. Choctaw Casino of Pocola, OK et al.
104,355D & P Tank Trucks, Inc. v. Rogers &
WCC.
104,749Randolph v. A Passmore & Sons, Inc.
104,588Ciempa v. Glynn Booher, Warden.
104,752Railway Investments LLC v. First
National Bank & Trust of Elk City,
OK.
104,670(Cons w/104,671) Harris et al v. Harris et al.
104,769National American Ins. Co. v. Okemah Management Co. et al.
104,692Hopkins et al. v. Public Service Company of Oklahoma.
104,790Condreay v. Henderson et al.
1836
104,682Stone et al v. Linden Real Estate, Inc.
104,695Physicians Liability Ins. Co. v. Jaskowiak, D.O., et al.
Vol. 78 — No. 20 — 7/28/2007
/s/
James R. Winchester
CHIEF JUSTICE
102,930Bartlett v. Bartlett.
103,495Smith et al v. Holloway et al.
103,518Ragan et al v. Ware.
103,566Durski v. Miner et al.
103,765Harmon et al v. Northcutt Chevrolet
Buick Co.
104,114JMA Energy Co. v. Chesapeake Exploration Limited Partnership.
103,547Patridge v. Russell Stover Candies,
Inc.
103,750Clinkenbeard v. Clinkenbeard.
103,782In the Matter of DH & RH.
104,076Marshall v. Marshall.
104,226(Cons w/104,245) In the Matter of the
Adoption of AJC, a minor child.
104,353Woodlawn Manor et al v. Oklahoma
Health Care Authority.
104,411(Comp w/104,413) ODOT v. Lamar
Advertising of OK et al.
104,413(Comp w/104,411) ODOT v. Garrett
& Co. et al.
104,115Haglund et al v. Thomas et al.
104,285In the Matter of the Adoption of LB.
104,359Craig et al v. Sims & WCC.
104,399Powell v. Franklin Electric Co., Inc.,
et al.
104,432Statewide General Agency, Inc. v.
Harden & WCC.
104,649Cooper v. Miller.
104,721Deutsche Bank National Trust Co. et
al. v. Daniel et al.
/s/
James R. Winchester
CHIEF JUSTICE
104,422Gipson v. Stand By Personnel et al.
104,446Spurgeon v. Youngker Joe et al.
104,450In the Matter of the Estate of Jerry
Lynn Williams, Deceased.
104,461Hobby Lobby & Ace Ins. v. Richardson & WCC.
104,474R & L Carriers et al v. Aich & WCC.
104,781James v. Premier Garage Systems.
104,784Engine & Performance Warehouse
South Inc. v. Smith et al.
104,786Intercermanic Inc. v. Sunrise Park
Management Co. et al.
104,788Harris v. OKC Public Schools.
COURT this 17th day of July, 2007.
102,669Carthen v. The City of Oklahoma
City et al.
102,878Bunce v. Asher et al.
Vol. 78 — No. 20 — 7/28/2007
/s/
James E. Edmondson
VICE CHIEF JUSTICE
1837
2007 OK CIV APP 57
BILL BOWEN and MARY JO BOWEN,
Plaintiffs/Appellees, v. BILLY JACK
TUCKER, GARY JOE TUCKER, DONNA
SUE TUCKER, CHARLIE F. TUCKER, and
SANDRA DELORES TUCKER, Defendants/
Appellants.
No. 101,877. May 31, 2007
APPEAL FROM THE DISTRICT COURT OF
HASKELL COUNTY, OKLAHOMA
HONORABLE DANITA G. WILLIAMS,
TRIAL JUDGE
AFFIRMED
Bill J. Nunn, Stigler, Oklahoma, for Plaintiffs/
Appellees,
Brian R. McLaughlin, McLAUGHLIN &
ASSOCIATES, P.C., Stigler, Oklahoma, for
Defendants/Appellants.
OPINION BY JANE P. WISEMAN, JUDGE:
¶1 Appellants appeal a trial court order
granting Appellees’ request for a permanent
injunction based on the trial court’s finding
that the road in dispute is a public road by
implied dedication. The injunction prohibits
Appellants from interfering with or causing
damage to the disputed road and restrains
them from interfering with Haskell County’s
maintenance of the road. Based on our review
of the record and applicable law, we find no
trial court error and affirm its order.
FACTS AND PROCEDURAL HISTORY
¶2 Plaintiffs Bill (Bill) and Mary Jo Bowen
(Mary Jo) (collectively, the Bowens) filed a
petition for injunctive relief and damages1
requesting the court to determine that a road
across and to property owned by the various
parties was a county road and therefore open
to the public. Defendants Billy Jack Tucker
(Billy Jack), Gary Joe Tucker (Gary Joe), and
Donna Sue Tucker (Donna Sue) (collectively,
the Tuckers)2 denied that the road was ever
dedicated as a county road and asserted that
it was a private road over which the Bowens
were entitled to an easement.
¶3 The Bowens requested a temporary
injunction to prohibit the Tuckers from interfering with the use and maintenance of the
road. On November 10, 2003, the trial court
held a hearing on the temporary injunction.
At the hearing, Mary Jo testified that she
1838
wrote a letter to County Commissioner Henry
Few (Commissioner Few), requesting that the
County perform maintenance on the road.
She testified that Bill, Sandra Delores Tucker
(Sandra Delores), Charlie F. Tucker (Charlie),
Donna Sue, Gary Joe, and Billy Joe Tucker
(Billy Joe)3 all signed the letter she wrote to
the County Commissioner. She further testified that in 1986, Billy Joe, Charlie, and Joe
Stiles, a County employee, moved the road “a
few feet to the north.” Sandra Delores testified at the hearing that Billy Joe, Charlie, and
Joe Stiles were “the ones that decided where
to put the road” when it was moved by the
County approximately 20 feet north in 1986.
When asked who kept up the road after it was
moved and upgraded in 1986, she answered:
The County did. When it was made, we
were going to make it a private road and
then a little while later . . . Sally said, this
is — Gary Joe and Bill’s [Billy Jack’s] mom,
she said, it was stupid for Mary to have to
bring the girls to catch the bus at the corner. She says, we’re going to open it up for
the bus to go down there. So, that is what
happened. The bus went to Billy Jack’s
house, picked the girls up and came back
out and the County did maintain the road,
at that time.4
Sandra Delores further testified that she considered the road in 1986 to be a County road
all the way down to the Bowens’ driveway
and so considered it at the present time.
¶4 The trial court entered its order granting
the Bowens’ request for a temporary injunction that prohibited the Tuckers from the
following:
[t]aking any action to damage the Road or
creating a condition which increases the
likelihood that a natural event, such as a
rain or other weather event, would cause
damage to the Road; and/or [t]aking any
action to stop or otherwise interfere with
the maintenance of the Road by the [Bowens] or County Commissioners for Haskell
County.
¶5 The hearing on the permanent injunction
was held on January 14, 2005. Sandra Delores
testified at trial that “[t]he County built the
road.” She further testified that the school bus
used the road to pick up Billy Jack’s children
and that the County periodically worked the
road up to the Bowens’ residence. Sandra
Vol. 78 — No. 20 — 7/28/2007
Delores replied in the affirmative when asked
whether the public used the road. When specifically asked what she believed to be the
status of the road, she stated, “I think it’s a
County road, myself.”
¶6 During his testimony at trial, Billy Joe
admitted that the County moved the road in
1986 but stated that he “didn’t know anything
about it until it was already moved.” Testimony at trial from all parties established that
the County maintained the road on occasion
and did so in 2001 specifically at the request
of the Bowens and the Tuckers as evidenced
by the letter written by Mary Jo and signed
by all of the parties. Commissioner Few testified that the County had maintained the road
for at least 6 years — the length of time that
he had been commissioner — and it was his
understanding from prior commissioners that
the County had intermittently maintained the
road since it was built in 1986.
¶7 At the conclusion of the hearing, the trial
court found the road to be a public road by
implied dedication, and it entered a permanent injunction prohibiting the Tuckers from
damaging the road or interfering with the
County’s maintenance of the road.
¶8 From this order, the Tuckers appeal.
STANDARD OF REVIEW
¶9 When reviewing an order granting injunctive relief, the appellate court will “review the
evidence, but will not disturb the trial court’s
findings and judgment unless found clearly
against the weight of the evidence.” McCraw
Oil Co. v. Pierce, 2004 OK CIV APP 7, ¶ 6, 83
P.3d 907, 910; see also Amoco Prod. Co. v. Lindley,
1980 OK 6, ¶ 50, 609 P.2d 733, 745. In actions
sounding in equity, the trial court determines
the credibility of the witnesses as well as the
weight and value to be given their testimony.
James v. Board of County Comm’rs of Muskogee,
1999 OK CIV APP 47, ¶ 7, 978 P.2d 1002, 1003.
Even though the evidence would have allowed
a different result, we must affirm unless we
determine the trial court’s decision is clearly
against the weight of the evidence. Id.
ANALYSIS
I. Issues not raised in the trial court
¶10 In their first proposition of error, the
Tuckers argue that the statute of frauds should
apply because the letter signed by the parties
requesting the County to maintain the road
Vol. 78 — No. 20 — 7/28/2007
was vague and thus did not support the trial
court’s determination of an implied dedication. The Tuckers’ third proposition of error
asserts that the implied dedication ruling is
contrary to the Oklahoma Constitution and
statutes.
¶11 The Tuckers failed to raise either a
statute of frauds or constitutionality/illegality defense at any point prior to appeal. It is
well-established that the appellate court does
not make “first-instance determinations of
disputed law or fact issues.” Bivins v. State ex
rel. Oklahoma Mem’l Hosp., 1996 OK 5, ¶ 19, 917
P.2d 456, 464. “That is the trial court’s function
in every case — whether in law, equity or on
appeal from an administrative body. Since the
[issue] had neither been raised nor assessed
at nisi prius, we cannot craft an initial decision upon an untried question and then direct
that it be followed on remand.” Id. (footnote
omitted). Because the issues of statute of
frauds and constitutionality or illegality were
not raised in the trial court, they may not be
considered for the first time on appeal.
II. Implied dedication of the road
¶12 In their second proposition of error, the
Tuckers assert that the trial court did not have
“deliberate, decisive, and undoubtful [sic]
proof” as to the Tuckers’ intentions regarding
the dedication of the road. We disagree.
¶13 Oklahoma case law clearly recognizes
two types of dedications of land for public purposes: “First, statutory; and, second,
implied or dedications at common law.” Henry
v. Ionic Petroleum Co., 1964 OK 37, ¶ 9, 391 P.2d
792, 794 (quoting Williamson v. Needles, 1942
OK 409, ¶ 0, 133 P.2d 211, 212). We do not discuss the law relevant to statutory dedications
in this opinion as there is neither a claim nor
evidence that such a dedication was made.
Regarding implied dedications, the Oklahoma
Supreme Court has stated:
An implied common-law dedication is
one arising by operation of law, from the
acts of the owner. It may exist without any
express grant, and need not be evidenced
by any writing, nor, indeed, by any form
of words oral or written. It is not founded
on a grant, nor does it necessarily presuppose one, but it is founded on the doctrine
of equitable estoppel.
Board of County Comm’rs of Garfield County v.
Anderson, 1934 OK 6, ¶ 36, 29 P.2d 75, 78.
1839
To constitute a dedication of land, or
an easement therein, to the public, two
things are necessary: An intention by the
owner clearly indicated in words or acts to
dedicate the land to the public use; and an
effective acceptance of the dedication by
or for the public, by reliance being placed
thereon, or by user, or otherwise.
Henry, 1964 OK 37 at ¶ 11, 391 P.2d at 794
(quoting Board of County Comm’rs of Oklahoma
County v. Brown, 1955 OK 241, 287 P.2d 917).
¶14 The Tuckers’ acts (and those of their
predecessors) clearly indicate their intent to
dedicate the land. Testimony revealed that
Billy Joe and Charlie worked with the County
to determine where to place the new road
that the County built. Mary Jo wrote a letter
asking the County to maintain the road. This
letter requesting the County’s services was
signed by Bill, Sandra Delores, Charlie, Donna
Sue, Gary Joe, and Billy Joe. As stated by the
Oklahoma Court of Civil Appeals,
Equity’s purpose is to “promote and
achieve justice with some degree of flexibility,” and requires courts to examine
“the particular circumstances of the case.”
At its most basic, “[e]quitable estoppel is
employed to prevent one party from taking a legal position inconsistent with an
earlier action that places the other party
at a disadvantage.” It “holds a person
to a representation made, or a position
assumed, where otherwise inequitable
consequences would result to another,
who has in good faith, relied upon that
representation or position.”
Harding & Shelton, Inc. v. Prospective Inv. &
Trading Co., Ltd., 2005 OK CIV APP 88, ¶ 28,
123 P.3d 56, 64 (citations omitted). Equitable
estoppel prohibits the Tuckers from asserting
a legal position (specifically that the road is a
private road and has not been dedicated to the
County) that is inconsistent with their earlier
actions.
¶15 The County’s acts of relocating the road
and maintaining it at the County’s expense
constitute an effective acceptance of the dedication. See Henry, 1964 OK 37 at ¶¶ 19-21, 391
P.2d at 796 (sustaining the trial court’s finding
of an implied dedication where the evidence
revealed that the county built the road, maintained the road on occasion and anybody
who wanted to use the road used it); see also
1840
Kelly v. City of Bethany, 1978 OK 163, ¶ 15,
588 P.2d 567, 571 (recognizing that acceptance
by a municipality may be evidenced by the
“municipality’s improving, repairing or other
act indicating dominion over the dedicated
property”). Once accepted by the County, the
Tuckers could no longer revoke the dedication. See Board of County Comm’rs of Rogers
County v. Cottingim, 1969 OK 5, ¶ 16, 448 P.2d
1014, 1017.
¶16 If the County, through one or more of its
commissioners, voluntarily expended public
funds to relocate a private road 20 feet north
of its then location and expended public funds
to maintain such a road, this could constitute
a violation of the Oklahoma Constitution,
art. 10, § 14(A) which states, in pertinent
part, “taxes shall be levied and collected by
general laws, and for public purposes only.”
“For public purposes only” in this context
has been construed to mean the money “must
be expended for the public good.” Orthopedic
Hosp. of Oklahoma v. Oklahoma State Dep’t of
Health, 2005 OK CIV APP 43, ¶ 7, 118 P.3d 216,
221 (citation omitted).
¶17 Such actions may also violate Article
10, Sections 15, 17, and 19 of the Oklahoma
Constitution, which prohibit gifts of public
monies to individuals (Section 15), appropriations of public money to individuals (Section
17), and using tax revenue collected for one
purpose for another purpose (Section 19). The
use of county funds and resources to establish,
enhance, or maintain purely private property
or interests also raises questions under the
qui tam provisions of 62 O.S.2001 §§ 372-373
which prohibit the unauthorized, unlawful
and fraudulent payment or transfer of government money or property. See State v. Bailey,
1956 OK 103, 295 P.2d 763. Under the facts presented, the County could lawfully move and
maintain this road only if it were a County
road open to public use.
¶18 When we consider the particular circumstances of this case, the trial court’s judgment was not clearly against the weight of the
evidence. While the Tuckers, including Billy
Joe, their predecessor in interest, deny that
they took part in any meeting with the County
about where the road should be relocated,
other parties to the action, including another
defendant, testified to the contrary.
¶19 The Tuckers’ actions, and those of their
predecessors in interest, on which the County
Vol. 78 — No. 20 — 7/28/2007
and the Bowens relied, contradict their testimony. In equitable matters, such as injunctions, the trial court determines the credibility
of the witnesses as well as the weight and
value to be given their testimony, and we will
not find fault with the trial court’s determination unless clearly against the weight of the
evidence. James, 1999 OK CIV APP 47at ¶ 7,
978 P.2d at 1003.
CONCLUSION
¶20 The trial court’s conclusion in finding
that an implied dedication occurred and in
granting a permanent injunction based on that
finding is not against the clear weight of the
evidence, and we therefore affirm the decision
of the trial court.
¶21 AFFIRMED.
RAPP, C.J., and FISCHER, P.J., concur.
1. The Bowens dismissed their claim for nuisance damages at
trial, which left the court with only the matter of the permanent
injunction.
2. Two other defendants, Charlie F. Tucker and Sandra Delores
Tucker, were named in the petition. Charlie F. Tucker was deceased at
the time of trial. His wife, Sandra Delores Tucker, although present at
the trial, was not present in a position adversarial to the Bowens, and
the parties agreed that no real cause of action existed against her.
3. Billy Joe Tucker is the father of Billy Jack and Gary Joe, and he
previously owned the property bordering the disputed road.
4. Although 69 O.S.2001 § 601.5 provides that a county can enter
private property adjoining a county road in order to maintain or
improve a private road when it is used for a school bus turn-around,
there is no evidence or argument suggesting this section’s applicability in this case.
2007 OK CIV APP 58
MICHAEL HAYES, Plaintiff/Appellee, v.
CATHERINE MAUDE HAYES, Defendant/
Appellant.
No. 102,803. February 28, 2007
APPEAL FROM THE DISTRICT COURT
OF COMANCHE COUNTY, OKLAHOMA
HONORABLE LEO A. WATSON, JR.,
TRIAL JUDGE
REVERSED AND REMANDED FOR
FURTHER PROCEEDINGS
Robert L. Ross, NEWCOMBE, REDMAN,
ROSS & NEWCOMBE, P.C., Lawton, Oklahoma, for Plaintiff/Appellee,
Scott A. Hester, HESTER, SCHEM, HESTER
& BATSON, Oklahoma City, Oklahoma, for
Defendant/Appellant.
OPINION ON REHEARING BY JOHN F.
FISCHER, JUDGE:
Vol. 78 — No. 20 — 7/28/2007
¶1 Appellant Catherine Hayes (Wife) appeals
from the Trial Court’s denial of her Motion to
Enforce a Decree of Divorce. Based on our
review of the record on appeal and applicable law, we reverse and remand for further
proceedings.
BACKGROUND FACTS
¶2 The parties divorced on December 12,
2000. At the time of the divorce, Appellee
Michael Hayes (Husband) was in the United
States Army. The decree of divorce was the
result of a contested hearing and not by agreement of the parties. The divorce decree provided, in pertinent part:
12. As further property settlement, the
Court finds that [Wife] should receive at
the time of [Husband’s] retirement from
the U.S. Army, a pro-rata share of [Husband’s] net military retirement benefit,
calculated as follows:
I f [Husband] retires from the U.S. Army
after 20 years, [Wife] is to receive 19.2%
of [Husband’s] net monthly military
retirement pay . . . .
aid percentages were arrived at by
S
dividing the number of months the parties were married prior to separation
(7 years and 8 months = 92 months) by
the total number of months [Husband]
was on active duty in the U.S. Army at
the time of retirement (20 years = 240
months). Once this number is obtained,
it is divided by two to arrive at [Wife’s]
share of [Husband’s] retirement pay to
which she is entitled.
¶3 Husband retired from the Army on September 30, 2004 after twenty years of service.
Consequently, Husband’s contingent right to
military retirement, of concern to the Trial
Court in section 12 of the divorce decree,
became fixed as of that date.1 Likewise, Wife’s
right to 19.2% of that amount became fixed on
that date. Husband received his first military
retirement check for $1,605 from the Defense
Finance and Accounting Service on November
1, 2004.
¶4 On December 11, 2004, Husband began
receiving a monthly check in the amount of
$429 from the Veterans Administration (VA)
based on a 30% disability rating. After receiving and approving Husband’s application for
re-evaluation of his disabled status, the VA
1841
subsequently increased Husband’s disability
rating to 80% and applied it retroactively to
his benefits received after October 2004. Husband did not seek a modification of the decree
based on this change in circumstance.2
¶5 Pursuant to federal law, Husband could
only receive disability benefits to the extent
that he waived a corresponding amount of
his military retirement pay. 38 U.S.C. §3105.
Following re-evaluation of his disabled status,
Husband’s monthly disability benefits were
$1,675. Consequently, Husband’s monthly
retirement pay, previously fixed at $1,605, was
reduced to zero. Husband refused to pay Wife
any portion of his retirement or disability,
claiming that he never received any retirement
pay and that the $1,675 disability payment
was for future earnings and not subject to the
divorce decree.
¶6 Arguing that Husband’s unilateral act of
converting his retirement benefits to disability
pay constituted an impermissible modification or evasion of the Trial Court’s property
division order, Wife filed a Motion to Enforce
Decree of Divorce on October 6, 2004. The
Trial Court denied Wife’s Motion finding
that it lacked the authority to either prevent
Husband from converting his retirement benefits to disability or require Husband to pay
Wife a portion of his disability benefits. Wife
appeals.
STANDARD OF REVIEW
¶7 A divorce is an action of equitable cognizance and a trial court exercises discretion
in dividing the marital estate. Teel v. Teel, 1988
OK 151, ¶7, 766 P.2d 994, 998. On appeal, a trial
court’s property division will not be disturbed
absent an abuse of discretion. Jackson v. Jackson, 2002 OK 25, ¶2, 45 P.3d 418, 422; Nelson v.
Nelson, 2003 OK CIV APP 105, ¶5, 83 P.3d 889,
891. We review de novo the Trial Court’s determination that it lacked the authority to grant
the relief requested in Wife’s motion. Jackson,
2002 OK 25 at ¶ 2, 45 P.3d at 422.
DISCUSSION
¶8 In McCarty v. McCarty, 453 U.S. 210, 101
S.Ct. 2728 (1981), superseded by statute 10
U.S.C. §1408(a)(4), the United States Supreme
Court held that “federal statutes then governing military retirement pay prevented state
courts from treating military retirement pay as
community property.” Mansell v. Mansell, 490
U.S. 581, 584, 109 S.Ct. 2023, 2026 (1989). “In
1842
direct response to McCarty, Congress enacted
the Former Spouses’ Protection Act, which
authorizes state courts to treat ‘disposable
retired or retainer pay’ as community property.” Id. (internal citations omitted). “Disposable retired or retainer pay” is defined as “the
total monthly retired or retainer pay to which
a military member is entitled,” less certain
deductions. 10 U.S.C. §1408(a)(4). Included
within these deductions are any amounts
waived in order to receive disability benefits. 10 U.S.C. §1408(a)(4)(B). Thus, Mansell
established that although “state courts have
been granted the authority to treat disposable
retired pay as community property; they have
not been granted the authority to treat total
retired pay [including disability pay] as community property.” Mansell, 490 U.S. at 590, 101
S. Ct. at 2029. Interpreting Mansell and related
cases, the Trial Court concluded that it lacked
the authority to grant Wife relief.
¶9 A trial court must divide marital property equitably. 43 O.S.2001 §121. Consequently,
a trial court has wide discretion to determine
what portion of the marital property should
be awarded to each spouse. Husband contends that “the only thing the Court awarded
[Wife] was a portion of any retirement which
[Husband] might in fact receive.” Therefore,
Husband argues that because he received
no retirement, Wife is not entitled to receive
anything.
¶10 First, Husband’s contention is factually
inaccurate. The original decree of divorce provided, “[I]n the event [Husband] chooses to or
is forced to retire from the U.S. Army prior to
serving 20 years on active duty,3 [Wife] shall
be entitled to receive a pro-rata share of any
lump sum payment and/or voluntary separation pay paid to [Husband] by the U.S. Army
. . . .” Thus, the Trial Court’s decree clearly
granted Wife a vested interest in a portion of
any payment Husband might receive on his
early separation from the Army.
¶11 Second, Husband’s contention is
unsound. In its decree of divorce, the Trial
Court granted Wife a portion of the marital
estate based, in part, on Husband’s anticipated retirement and calculated pursuant to
a formula designed to ascertain that portion
of his retirement earned during the marriage. In doing so, the Trial Court awarded
Wife property to which she remains entitled
absent a modification of the decree. That prop-
Vol. 78 — No. 20 — 7/28/2007
erty was obviously a critical component of the
Trial Court’s equitable division of the parties’
total property at the time of the decree. But
for this amount, the Trial Court would have
been required to allocate other marital assets
to Wife. Husband did not challenge the Trial
Court’s original division of property, we must
conclude, because he recognized that it was
an equitable division. Nonetheless, he has
refused to carry out the property division
contemplated by the Trial Court.
¶12 In Troxell v. Troxell, 2001 OK CIV APP
96, 28 P.3d 1169, another division of this Court
addressed the issue of the division of military
retirement pay later converted to disability
pay. The Troxell court held that although a
trial court cannot consider disability benefits
as marital property, it “is not precluded from
determining whether other assets are available
to satisfy the nonmilitary spouse’s share of the
marital property.” Id. 2001 OK CIV APP 96 at
¶7, 28 P.3d at 1171-72. In reaching this conclusion, the Troxell court relied on language in 10
U.S.C. §1408(e)(6), which provides:
Nothing in this section shall be construed
to relieve a member of liability for the payment of alimony, child support, or other
payments required by a court order on
the grounds that payments made out of
disposable retired pay under this section
have been made in the maximum amount
permitted under paragraph (1) or subparagraph (b) of paragraph (4). Any such
unsatisfied obligation of a member may be
enforced by any means available under law . . .
.(Emphasis added).
¶13 Husband argues that Troxell is inapplicable to the present controversy because the
decree of divorce does not provide a specific
dollar amount of payment. The divorce decree
issued in Troxell provided that the plaintiff
was to receive “3/8ths of the Defendants
retirement base pay upon Defendants retirement from the United States Air Force . . .
which equals $610.88 per month.” Although
the decree reviewed in Troxell translated the
percentage awarded into a specific dollar
amount, it is obvious from the language of
the opinion that, in specifying this amount,
the court merely provided further clarification
of its award. We decline to interpret Troxell
as requiring both a formula and the dollar
amount of that computation.4
Vol. 78 — No. 20 — 7/28/2007
¶14 As in Troxell, the Trial Court in this matter awarded Wife marital property equal to a
portion of Husband’s retirement benefits based
on a set percentage. As a result, Husband has
an adjudicated duty to Wife, which he has
a legal obligation to satisfy even though the
dollar amount of that obligation could not be
determined until after the decree was entered.
Although an exact monetary figure was not
also included in the decree, we are unable
to find any language in Troxell holding that
the absence of a sum certain precludes a trial
court from including anticipated payments on
retirement in its property division order. This
is particularly true where, as in this case, the
exact dollar amount was not ascertainable at
the time of the decree because Husband had
not yet retired from the Army.5
¶15 Husband also argues that Wife’s request
for relief is an impermissible attempt to modify a final property division out of time. As
both parties recognize: absent fraud, a property settlement award cannot be modified in
a post-decree hearing. See Clifton v. Clifton,
1990 OK 88, 801 P.2d 693.6 However, Wife’s
requested relief is not an attempt to modify
the Trial Court’s property division. Rather,
Wife seeks to compel Husband to satisfy
his previously adjudicated, unappealed and
unmodified property division obligation.
¶16 The Trial Court was correct in holding that it could not require Husband to pay
Wife a portion of his federally protected disability benefits. However, that does not mean
the Trial Court is precluded from granting
Wife any relief. Despite his 80% disability
rating, Husband continued to work full-time
after his retirement from the Army, a fact the
Trial Court may consider along with all other
aspects of Husband’s financial condition.
¶17 The Trial Court’s decree of divorce
does not require Husband’s payments to
Wife to come from any particular source.
Rather, the decree provides that Wife shall
receive an amount equal to a pro-rata share of
Husband’s eventual military retirement. The
decree memorializes Husband’s legal obligation, which Husband may satisfy from whatever source of funds he chooses.
¶18 Our holding today, therefore, does not
conflict with Oklahoma’s policy against modification of a final property division. Nor
does this result conflict with well established
authority excluding future disability benefits
1843
from the marital property subject to division
in a divorce proceeding. See e.g. Crocker v.
Crocker, 1991 OK 130, 824 P.2d 1117; Christmas
v. Christmas, 1990 OK 16, 787 P.2d 1267; Davis
v. Davis, 2004 OK CIV APP 30, 87 P.3d 640.
Crocker, Christmas, and Davis are premised on
the principle that disability payments in lieu
of future earnings are not jointly acquired
by the divorcing parties during their marriage. That principle has no application to this
case wherein Husband voluntarily exchanged
jointly acquired property, previously divided
by the Trial Court, for disability payments that
he now contends are beyond the reach of the
Trial Court.
CONCLUSION
¶19 We hold that the Trial Court erred in
determining that it lacked the authority to
entertain Wife’s Motion to Enforce Decree
of Divorce. The Trial Court has jurisdiction
consistent with this opinion and existing law,
to enforce Husband’s previously adjudicated
obligation pursuant to the property division
order. Accordingly, we reverse that portion of
the order finding that the Trial Court lacked
authority to require Husband to satisfy his
previously determined obligation to Wife.
¶20 REVERSED AND REMANDED FOR
FURTHER PROCEEDINGS.
WISEMAN, P.J., and GOODMAN, J., concur.
1. From this record we are unable to determine whether this
amount reflected Husband’s total retirement benefit, the unpaid portion of which would become part of Husband’s estate on his death,
or a payment to Husband while he was alive with no residue to his
estate. For the reasons stated herein, this is a matter for the Trial
Court’s determination on remand.
2. Husband would not have had a right to seek modification of
the Trial Court’s division of military retirement to the extent it was
an aspect of the property division. Absent fraud, a property settlement award cannot be modified in a post-decretal hearing. Barth v.
Barth, 1990 OK 110, ¶ 1, 803 P.2d 1117, 1117. Nonetheless, we observe
Husband’s failure to pursue modification based on his new disabled
status because it detracts from the credibility of his argument that the
conversion of his military retirement pay to disability pay was not a
voluntary act. Focus on the property division aspect of the decree,
however, fails to consider Husband’s obligation to pay monthly child
support until 2010. Child support orders “may be modified upon
a material change in circumstances.” 43 O.S. Supp. 2006 § 16(a)(1).
Apparently, Husband’s disability was not material enough to warrant
an attempt at modifying his child support obligation.
3. Twenty years on active duty — or equivalent time spent in what
is known as “qualifying service” as a reservist — is the basic eligibility requirement for military retirement. Every service member who
reaches the requirement can receive retired pay that increases each
year through a cost-of-living adjustment. 10 U.S.C. §3911.
4. We note that it is common practice for a trial court to assign
proportionate sums of anticipated retirement pay to a military spouse
where, as in this case, the exact amount of retirement is not ascertainable at the time the decree is entered. See e.g. Jackson v. Jackson, 2002
OK 25, 45 P.3d 418; Mariano v. Mariano, 2005 OK CIV APP 77, 122 P.3d
493; Ozment v. Ozment, 2000 OK CIV APP 52, 11 P.3d 635.
1844
5. Although Troxell dealt with a Qualified Domestic Relations
Order, its holding is applicable in this case. An issue in both cases is
a nonmilitary spouse’s right to a property division award based on
military retirement subsequently converted to disability. In Troxell, the
trial court ordered the husband to pay the wife from his own funds if
the military did not pay her directly. In this case, the Trial Court found
jurisdiction lacking to enter that type of order. Contrary to the Husband’s argument, that distinction does not render Troxell inapplicable.
The Troxell Court reads the applicable law as we do. “Title 10 U.S.C.
§ 1408 does not preclude a court from enforcing a property division
award in which the retirement benefits were properly divided but the
property division award is subsequently averted by a spouse who
converts the retirement funds or a portion thereof to disability benefits.” Troxell, 2001 OK CIV APP 96at ¶ 7, 28 P.3d at 1174.
6. Fraud was not an issue in the Trial Court and we do not impute
that kind of conduct to Husband on the basis of this record. Nonetheless, it is not difficult to envision a scenario whereby a party’s
intentional conduct could produce results similar to those in this case
sufficient to justify a modification of the property division order for
fraud.
2007 OK CIV APP 59
MARY LINDA MCCALL, an individual,
Plaintiff/Appellant, v. CHESAPEAKE
ENERGY CORPORATION, an Oklahoma
corporation; and CHESAPEAKE
OPERATING, INC., an Oklahoma
corporation, Defendants/Appellees.
No. 102,929. April 9, 2007
ORDER
¶1 Having considered the petition for certiorari, the answer and the reply thereto filed
in the above styled and numbered cause, THE
COURT DETERMINES:
1) The petition for certiorari filed in the
above styled and numbered cause by the
plaintiff/appellant, Mary Linda McCall,
should be denied.
2) The opinion promulgated by the Court
Of Civil Appeals, Division II, in the above
styled and numbered cause should be
accorded precedential value and released
for publication by order of this Court.
Rule 1.200, Supreme Court Rules, 12 O.S.
2001, Ch. 15, App. 1; 20 O.S. 2001 §§30.5
and 30.14.
¶2 IT IS HEREBY ORDERED, ADJUDGED
AND DECREED that certiorari should be
denied, and the Court of Civil Appeals opinion
be accorded precedential value and released
for publication by order of this Court.
¶3 DONE BY ORDER OF THE SUPREME
COURT IN CONFERENCE THIS 9TH DAY
OF APRIL, 2007.
/s/
James R. Winchester
CHIEF JUSTICE
Vol. 78 — No. 20 — 7/28/2007
VOTE ON DENIAL OF CERTIORARI:
WINCHESTER, C.J., EDMONDSON, V.C.J.,
LAVENDER, HARGRAVE, OPALA, WATT,
TAYLOR, COLBERT, JJ. — concur.
KAUGER, J. — Not participating
VOTE TO GRANT PRECEDENTIAL VALUE
TO COCA OPINION:
WINCHESTER, C.J., EDMONDSON, V.C.J.,
LAVENDER, HARGRAVE, WATT, TAYLOR,
COLBERT, JJ. — concur
OPALA, J. — dissents.
KAUGER, J. — Not participating
No. 102,929. January 9, 2007
APPEAL FROM THE DISTRICT COURT
OF OKLAHOMA COUNTY, OKLAHOMA
HONORABLE VICKI L. ROBERTSON,
TRIAL JUDGE
AFFIRMED
Gregory L. Mahaffey, Lee D. Groeneveld,
MAHAFFEY & GORE, P.C., Oklahoma City,
Oklahoma, for Plaintiff/Appellant,
Fred R. Gipson, Oklahoma City, Oklahoma,
Robert N. Barnes, Patranell Britten Lewis,
BARNES & LEWIS, P.C., Oklahoma City, Oklahoma, for Defendants/Appellees.
JOHN F. FISCHER, JUDGE:
¶1 This is an appeal from the Trial Court’s
order granting summary judgment to a well
operator in a declaratory judgment action. The
appeal involves the operator’s dispute with a
working interest owner regarding the marketing of production from certain wells. Based
on our review of the record on appeal and
applicable law, we affirm.
BACKGROUND FACTS
¶2 Plaintiff, Mary McCall, successor in interest to Jack O. McCall, owns non-operating
working interests in four wells located in
the Kirtley Unit No. 1 in Beckham County,
Oklahoma. Defendant Chesapeake Operating, Inc., is the operator of the Kirtley Unit,
and a wholly owned subsidiary of Defendant
Chesapeake Energy Corporation (CEC).
¶3 Three of McCall’s wells, the “Amos
1-29,” the “Sharum 1A-30,” and the “D.L.
Sanders 1-24,” are subject to joint operating
agreements (the JOAs). The JOAs, based on a
standard industry model form1, are identical
in their terms, but differ as to date of execuVol. 78 — No. 20 — 7/28/2007
tion. An agreement dated July 2, 1973, applies
to the Amos and Sharum wells, while one
dated August 25, 1976, applies to the Sanders
well. Sometime in February 1977, the JOAs for
the Amos and Sharum wells were amended to
include a “Gas Balancing Agreement.” However, it appears that neither McCall nor her
predecessor in interest ever executed those
agreements. There was no gas balancing
agreement applicable to the Sanders well.
¶4 Chesapeake Operating and Plaintiff were
not subject to a JOA on her fourth well, the
Staley 1-29. Chesapeake was the designated
operator of the Staley well under the terms
of a pooling order entered by the Oklahoma
Corporation Commission (OCC).
¶5 In July 2004, Chesapeake Operating began
corresponding with McCall regarding marketing of production from the four unit wells. By
letter dated October 5, 2004, McCall’s attorneys notified Chesapeake Operating of her
objections to the proposed marketing arrangement and that she was electing to exercise her
rights under the provisions of Oklahoma’s
Natural Gas Market Sharing Act (NGMSA),
52 O.S.2001 §§ 581.1 through 581.10, to market
her share of production.2 The letter further
stated:
Your proposed arrangement covers areas
and creates obligations broader than the
obligations and rights set forth in the
[NGMSA].
....
It is also understood that the administrative fees are currently controlled by a
schedule established from time to time by
the [OCC], and that such fees are currently
authorized to be deducted from proceeds.
Your August 9, 2004 letter also disclosed
that Chesapeake has been charging marketing fees on gas of 2% of the gross sales
price and $0.20 per barrel oil prior to January 1, 2002, and after January 1, 2002, 3%
of net resale price on gas and $0.30 per
barrel on oil. Please advise me where same
was disclosed in [McCall’s] revenue statements. Also, please advise me under what
authority you are charging a marketing fee
on oil. The reasonableness of such fees is
an issue on which [McCall] presently does
not agree with Chesapeake.
¶6 Chesapeake Operating responded to the
letter, and refused to market McCall’s share of
1845
gas from the Amos, Sharum and Sanders wells
under the terms of the Act. Chesapeake Operating asserted that, pursuant to paragraph 13
of the JOAs, each party was required to market
its own production, and it had no obligation to
market production on behalf of non-operating
working interest owners. However, it offered
to market McCall’s gas under its “standard
marketing agreement,” once she signed it.
¶7 McCall declined to sign Chesapeake
Operating’s standard marketing agreement.
On May 20, 2005, she filed an action against
Chesapeake Operating and CEC seeking
declaratory judgment pursuant to 12 O.S.
Supp. 2004 §1651. She requested the Trial
Court to (1) determine the parties’ rights and
liabilities under the JOA; and (2) find that the
JOA is not a marketing agreement and that
she is entitled to elect to market her proportionate share of production from the Kirtley
Unit through Chesapeake Operating pursuant to the provisions of the NGMSA. In their
joint answer, Defendants denied that McCall
had any right to elect to market her share
under the terms of the NGMSA. CEC denied
any contractual relationship with McCall and
asserted that it was not the operator of the
wells at issue.
¶8 Chesapeake Operating asserted a counterclaim against McCall, seeking a declaration
that it had no obligation to market her production from the Amos, Sharum and Sanders wells under the NGMSA because, under
the terms of section 581.4 of the NGMSA,
McCall was ineligible to elect to market share
from those wells. Chesapeake Operating also
sought its own declaratory judgment regarding the Staley well. Chesapeake Operating
conceded that McCall could elect to market
her production from that well pursuant to the
NGMSA. The purchaser of gas production
from the Staley well was Chesapeake Energy
Marketing, Inc. (CEMI).3 For its services related to gas sales, CEMI deducted a flat 3% from
the net resale price, with the working interest
owner bearing its royalty owners’ share of the
fee. Chesapeake Operating requested the Trial
Court to determine that McCall was obligated
to bear her proportionate share of the marketing fees deducted by CEMI. Chesapeake
Operating also requested the Trial Court to
determine another issue in dispute in regard
to the Staley 1-29 pooled well — the effective date of McCall’s election to market share
under the Act.
1846
¶9 On the same day that they filed their
answer, Defendants sought summary judgment on all claims and counterclaims. McCall
responded, sought summary judgment on her
claims, and moved for a continuance to conduct discovery as to Chesapeake Operating’s
counterclaims.
¶10 After extensive briefing and two hearings, the Trial Court, finding no genuine dispute as to any material fact, granted summary
judgment in favor of Defendants. The journal
entry of judgment identifies four grounds on
which the Trial Court based its determination
that Defendants were entitled to judgment as
a matter of law. The Trial Court determined
that: (1) pursuant to section 581.4(B)(1) of the
NGMSA, McCall is not eligible to market share
as to those wells (the Amos 1-29, DL Sanders
1-24, and Sharum 1A-30) governed by the
JOAs; (2) in regard to the Staley 1-29 pooled
well, the terms of the NGMSA obligate McCall
to bear her proportionate share of the 3% marketing fee deducted by CEMI, the purchaser of
Chesapeake Operating’s gas; (3) pursuant to
section 581.5(A) of the NGMSA, McCall is not
entitled to market share in the Staley 1-29 well
for periods of time prior to January 1, 2005
(i.e., prior to the first day of the month following 60 days from Chesapeake Operating’s
receipt of her written election to market share
under the NGMSA); and (4) McCall failed to
state a claim against CEC, the parent company
of both Chesapeake and CEMI.
¶11 McCall appeals. She raises seven allegations of error in her petition in error, six
of which can be summarized as a contention
that the Trial Court erred as a matter of law
in its interpretation and application of the
NGMSA and the JOA terms. She also claims
that the Trial Court improperly weighed the
evidence regarding her claim against CEC.
McCall asserts that the Trial Court’s decision
is erroneous, incorrectly interprets language
from the JOA, the NGMSA and OCC rules,
and undermines the objectives of the NGMSA
set forth in 52 O.S.2001 §581.2.
STANDARD OF REVIEW
¶12 On review of a trial court’s order granting summary judgment, this Court, like the
lower court, will examine the pleadings and
evidentiary materials submitted by the parties
to determine if there is any genuine issue of
material fact. Carmichael v. Beller, 1996 OK 48,
¶2, 914 P.2d 1051, 1053. “Although a trial court
Vol. 78 — No. 20 — 7/28/2007
in making a decision on whether summary
judgment is appropriate considers factual matters, the decision turns on purely legal determinations, i.e., whether one party is entitled
to judgment as a matter of law because there
are no disputed material factual questions.”
Id. “Therefore, as the decision involves purely
legal determinations, the appellate standard
of review of a trial court’s grant of summary
judgment is de novo.” Id. On de novo review,
this Court exercises its independent judgment
as to the legal effect of the undisputed facts
disclosed by the summary judgment record.
Id.
DISCUSSION
I. The Amos, Sharum and Sanders Wells
¶13 The dispute regarding marketing of
production from the three non-pooled wells
centers on the interpretation and application
of provisions of the NGMSA and the JOAs.
McCall asserts that the Trial Court erred in
determining as a matter of law that, because
her interests were exempt from the provisions
of the NGMSA, she could not elect under the
NGMSA to have Chesapeake Operating sell
gas on her behalf or find a market for her gas
from these three wells. A brief review of the
NGMSA and its history is necessary before
considering her arguments.
¶14 The Oklahoma Legislature enacted the
NGMSA in 1992. See 1992 Okla. Sess. Laws, ch.
190, §§18-29. This act amended and recodified
the provisions of the “Sweetheart Gas Act,”
while also adding several new provisions to
govern gas sales.
¶15 The “Sweetheart Gas Act,” formerly
found at 52 O.S. Supp. 1983 §§ 540-547, was
prompted by the public policy considerations
of protecting the “smaller co-owners” from
predatory practices in the sale of well production. Seals v. Corp. Comm’n, 1986 OK 34, ¶7, 725
P.2d 278, 283-84. It changed the common law
by entitling each owner “to share ratably in
the revenues generated by the sale of production and created a type of cotenancy property
interest in such proceeds.” Id. at ¶16, 725 P.2d
at 285.4 It also addressed “abuses in the industry” related to delayed payment to non-selling
owners:
The Act addresses these kinds of abuses in
the industry by providing for immediate
balancing of all proceeds of production
from a single gas well from the date of first
Vol. 78 — No. 20 — 7/28/2007
production on and after the effective date
of the Act. It gives the right of ownership
of interests in a gas well ratably to each
co-owner in the proceeds generated by a
well’s production as of the moment the
gas is reduced to possession consistent
with the well recognized principle of the
law of capture . . . .
Id. at ¶ 19, 725 P.2d at 286.
¶16 The Sweetheart Gas Act, however,
proved to be insufficient to address the problems in the natural gas industry associated
with multiple working interest owners marketing or attempting to market natural gas
from the same wellbore. See Stephen R. McNamara & Gregory D. Miller, Oklahoma’s Production Revenue Standards Act Post FERC Order 636
— Measurement, Delivery and Quantity Issues,
29 Tulsa L.J. 639, 648 (1994). The NGMSA
reflects further legislative efforts to address
industry problems. See 52 O.S.2001 §§581.1
through 581.10.
¶17 McCall correctly states that the legislative purpose and intent of the NGMSA is to
“protect the rights and correlative rights of all
owners in wells producing natural gas . . . and
to afford all such owners an equal opportunity
to produce and market their share of gas and
to receive the proceeds derived therefrom .
. . [and] further . . . to protect such owners
against discrimination in purchases in favor
of one owner as against another.” 52 O.S.2001
§581.2. This is consistent with former section
541 of the Sweetheart Gas Bill. However, as
noted above, the NGMSA contains provisions
that were not previously part of the Sweetheart Gas Act. For example, the Legislature
has identified section 581.4 of the NGMSA as
a “new law,” rather than “amendatory.” See
1992 Okla. Sess. Laws, ch. 190, §21. Section
581.4 of the NGMSA exempts certain sales
from the provisions of the Act and makes certain owners ineligible to elect to market share.
Section 581.4 provides, in pertinent part:
A. The following sales are exempt from
the provisions of the Natural Gas Market
Sharing Act:
....
B. Owners in a well shall not be entitled to
elect to market share pursuant to the provisions of [this Act] if in such well, such
owners:
1847
1. Are subject to a balancing agreement
or other written agreement which expressly
provides for the taking, sharing, marketing
or balancing of gas in a manner other than as
provided for in [this Act].
(Emphasis added.)
¶18 We have previously noted the absence
of either the signature of McCall or her predecessor in interest on the 1977 amendments
to the JOAs for the Amos and Sharum wells
that added the “Gas Balancing Agreement.”
According to McCall’s interpretation of section 581.4, application of the NGMSA is
required when the operating agreement lacks
“an express gas balancing agreement or other
comparable contractual arrangement.” McCall
further claims that, in reaching its conclusion that the NGMSA did not apply, the Trial
Court erroneously found that the language in
paragraph 13 of the JOA satisfied the statutory requirement of an agreement “which
expressly provides for the taking, sharing,
marketing or balancing of gas.” According to
McCall, this finding subverts the objectives of
the NGMSA.
¶21 A JOA is a contract and is to be interpreted according to general contract principles. Pitco Prod. Co. v. Chaparral Energy, Inc.,
2003 OK 5, ¶12, 63 P.3d 541, 544. If the language of a JOA is unambiguous, the court is to
interpret it as a matter of law. Id. The existence
of ambiguity is a determination to be made
by the court. Id. “The mere fact the parties
disagree or press for a different construction
does not make an agreement ambiguous.” Id.
at ¶14, 63 P.3d at 544.
¶22 The JOAs between McCall and Chesapeake Operating are preprinted industry
model forms, under the terms of which each
working interest owner is obligated to “take
in-kind or separately dispose of its proportionate share of the oil and gas produced
from the Unit Area.” Each JOA sets forth the
“Interests of Parties” and provides terms of
the parties’ ownership of production of oil and
gas from the Unit Area. The JOAs further provide, at paragraph 13 (entitled “Right To Take
Production in Kind”):
¶20 The Trial Court’s decision does not subvert the objectives of the NGMSA. We note the
provisions of section 581.6 of the NGMSA:
In the event any party shall fail to make
the arrangements necessary to take in
kind or separately dispose of its proportionate share of the oil and gas produced
from the Unit Area, Operator shall have
the right, subject to revocation at will by
the party owning it, but not the obligation, to purchase such oil and gas or sell
it to others for the time being, at not less
than the market price prevailing in the
area, which shall in no event be less than
the price which Operator receives for its
portion of the oil and gas produced from
the Unit Area. Any such purchase or sale
by Operator shall be subject always to
the right of the owner of the production
to exercise at any time its right to take in
kind, or separately dispose of, its share of
all oil and gas not previously delivered to
a purchaser. Notwithstanding the foregoing, Operator shall not make a sale into
interstate commerce of any other party’s
share of gas production without first giving such other party sixty (60) days notice
of such intended sale.
Nothing in the [NGMSA] shall be construed to: 1. Prevent any owner from
receiving the price agreed upon by contract or to prevent any owner from taking
its share of production in kind or separately
disposing of its share.”
¶23 The Amos, Sharum and Sanders wells
are subject to JOAs that contain provisions
governing taking, sharing and marketing of
gas. McCall, as an owner in wells subject to
those written agreements, is not permitted to
market share pursuant to the provisions of
¶19 It is clear from the language of the
administrative rules promulgated by the OCC
to implement the NGMSA that a balancing
agreement is not the only type of written
agreement that will preclude an owner from
electing to market share: “This Subchapter
establishes a procedure whereby an owner
in a well may compel the well operator or
other designated marketer to either sell gas on
the owner’s behalf or find a market for that
owner’s gas.” Okla. Admin. Code 165:10-24-1.
However, “[a]n owner may not elect to market
share as to a particular well if as to such well:
(1) said owner is subject to a balancing agreement (or other written agreement expressly
providing for gas balancing, or the taking, sharing, marketing of gas).” Okla. Admin. Code 1024-3(b)(1) (emphasis added).
1848
Vol. 78 — No. 20 — 7/28/2007
section 581.4(B)(1). Neither the JOAs nor the
NGMSA prevents her from electing to take
in kind or separately dispose of her share of
production, but she cannot elect to share in
Chesapeake Operating’s contract for the sale
of production from those wells. Thus, we find
that the Trial Court correctly concluded, as
a matter of law that, as to those three wells,
McCall was not entitled to elect to market
share under the NGMSA.
II. The Pooled Staley Well
¶24 As previously noted, McCall’s interest
in the fourth well at issue herein, the Staley
1-29, was subject to an OCC pooling order.
The parties agreed that the provisions of the
NGMSA applied to that well and that McCall
was eligible to elect to market share. However,
they disagreed as to the amount of fees that
could be properly deducted from her share of
production under Chesapeake’s gas purchase
contract with CEMI.
¶25 Section 581.10 of the NGMSA empowers the OCC to promulgate rules to implement the NGMSA and establish “a schedule
of reasonable administrative fees sufficient
to cover the actual costs incurred by the
designated marketer to perform the duties
required by the [NGMSA] and not assumed
by private agreement.” 52 O.S.2001 §581.10. In
this regard, the OCC rules provide that “[t]he
designated marketer [operator] may charge
each electing owner with an administrative
fee for marketing the electing owner’s share
of production.” The rules further explain that
“[a]dministrative fees under this Section shall
be in addition to and separate from any and all
post-production costs and expenses, including
but not limited to reasonable marketing costs and
expenses which may also be deducted from
the proceeds payable to eligible electing owners.” Okla. Admin. Code 165:10-24-6 (emphasis added). After reviewing the applicable
statute and rules, we find no error in the Trial
Court’s determination that McCall was obligated to bear her proportionate share of the
3% marketing fee payable under Chesapeake
Operating’s contract with the purchaser of the
gas, CEMI.
III. Effective Date of Election
¶26 The Trial Court found that McCall’s
election to market share in the Staley well
was not retroactive, and the effective date of
her election was January 1, 2005. This findVol. 78 — No. 20 — 7/28/2007
ing is consistent with section 581.5(A), which
provides that “[m]arket sharing shall become
effective as to sales commencing on the first
day of the month following the expiration of
sixty (60) days from receipt of such election by
the designated marketer.” The record establishes that date is January 1, 2005, and we find
no error in this regard.
IV. Claims Against CEC
¶27 Finally, McCall alleged that the Chesapeake entities created, through accounting
management, a structure whereby funds for
marketing and operations flow to the same
entity and can be managed so as to realize
or eliminate profit from any particular subsidiary. McCall claims that because CEC’s
finances are so closely linked to those of its
affiliates, any declaratory relief against Chesapeake Operating needs to be binding on its
parent, CEC, and, therefore, it is a necessary
party to the lawsuit.
¶28 We note that, in her petition, McCall
made no allegations against CEC other than
that Chesapeake Operating was its subsidiary.5
“The general rule is that a corporation is a distinct legal entity separate and apart from other
legal entities or stockholders.” Warner v. Hillcrest Med. Ctr., 1995 OK CIV APP 123, n.5, 914
P.2d 1060, 1067 n.5, cert. denied, Wilkinson and
Monaghan v. Hillcrest Healthcare Corp., 519 U.S.
861, 117 S. Ct. 165 (1996) (citing Gulf Oil Corp.
v. State, 1961 OK 71, 360 P.2d 933). Separate
corporate existence will not be disregarded in
the absence of proof “that the parent/subsidiary corporations [are] so closely linked and
inextricably intertwined as to be effectively
one entity.” Id. at ¶23, 914 P.2d at 1067. McCall
failed to tender evidentiary materials showing disputed issues of fact regarding whether
Chesapeake Operating was the mere agent or
instrumentality of CEC.6 Indeed, the evidentiary materials of record do not establish more
than “a usual parent-subsidiary relationship.”
See In re Hillsborough Holdings Corp., 166 B.R.
461, 471 (Bankr. M.D. Fla. 1994) (recognizing
that, in the corporate world, there is nothing
inherently wrong in a parent managing all of
the cash generated by the subsidiaries through
a cash management system).
¶29 The evidentiary materials that McCall
tendered do not demonstrate disputed material facts on this issue that require determination by the trier of fact. To the extent that the
denial of relief to McCall does not moot this
1849
issue, we nonetheless find that the Trial Court
did not err in refusing McCall’s request to
disregard the separate corporate identities of
Chesapeake Operating and CEC.
CONCLUSION
¶30 As a party to the JOAs for the Amos,
Sharum and Sanders wells, McCall was subject to a “written agreement that expressly
provides for the marketing of gas in a manner
other than as provided for in [the NGMSA].”
Therefore, as a matter of law, McCall was
precluded from electing to market share as
to those three particular wells. We conclude
that the Trial Court did not err in finding that
the JOAs bound the parties, to the exclusion
of the provisions of the NGMSA. 52 O.S.2001
§581.4(B)(1). With respect to the Staley well,
we find no error in the Trial Court’s determination that the terms of the NGMSA required
McCall to bear her proportionate share of the
3% marketing fee deducted by CEMI, or that
she failed to state a claim against CEC. Finally,
we find no error in the Trial Court’s determination that the effective date of McCall’s
election to market share was January 1, 2005.
Accordingly, we affirm the Trial Court’s
grant of summary judgment to Chesapeake
Operating and CEC.
¶31 AFFIRMED.
WISEMAN, P.J., and GOODMAN, J., concur.
1. A.A.P.L. Form 610 Model Form Operating Agreement — 1956.
2. Pursuant to section 581.10 of the NGMSA, which empowers
the OCC to promulgate rules to implement the Act, the OCC has
established “a procedure whereby an owner in a well may compel the
well operator or other designated marketer to either sell gas on the
owner’s behalf or find a market for that owner’s gas.” Okla. Admin.
Code 165:10-24-1. Under this procedure, the operator or other designated marketer “shall find an independent, non-affiliated purchaser
for the electing owner’s gas, or the designated marketer shall produce
and sell gas for the account of the electing owner.” Okla. Admin.
Code 165:10-24-4(a).
3. CEMI is a corporation formed for the purpose of purchasing
gas production. It is also a wholly owned subsidiary of CEC. An affidavit that Chesapeake Operating attached to its motion for summary
judgment states that Chesapeake Operating “sells its gas production
from the Staley 1-29 to an affiliate purchaser — CEMI.”
4. At common law and under typical operating agreements, no
such cotenancy exists. Under the language of typical operating agreements, the operator has the right, but not the obligation to market a
non-operator’s share of gas. The language in section 13 of the JOAs
at issue herein, provides that “[e]ach party shall take in kind or
separately dispose of its proportionate share of all oil and gas produced from the Unit area . . . .” This language is not consistent with
a cotenancy relationship. See Doheny v. Wexpro Co., 974 F.2d 130, 134
(10th Cir. 1992).
5. Upon questioning by the Trial Court at the hearing on the parties’ motions, McCall conceded that the allegations against CEC in
her petition were “only as a kind of a parent and holding company of
Chesapeake Operating.”
6. “When one corporation is but an instrumentality or adjunct of
another by which it is dominated and controlled, a court may look
beyond the form to the substance of the situation, and disregard the
1850
theory of distinct legal entity, for the purpose of holding the dominant
corporation responsible for the liabilities of the sham corporation.”
Wallace v. Tulsa Yellow Cab Taxi & Baggage Co., 1936 OK 665, ¶0, 61 P.2d
645 (Syllabus 1).
2007 OK CIV APP 60
TAMMY FAYE MARSH, Plaintiff/Appellee,
v. MARK LYNN MARSH, Defendant/
Appellant.
No. 103,350. May 25, 2007
CLEVELAND COUNTY, OKLAHOMA
HONORABLE LORI M. WALKLEY, JUDGE
AFFIRMED
Robert Stormont, Oklahoma City, Oklahoma,
for Plaintiff/Appellee,
Edward F. Saheb, Norman, Oklahoma, for
Defendant/Appellant.
BAY MITCHELL, VICE-CHIEF JUDGE:
¶1 This case results from a divorce granted
to Defendant/Appellant Mark Lynn Marsh
(Father) and Plaintiff/Appellee Tammy Faye
Marsh (Mother). The present appeal concerns
the trial court’s denial of Father’s motion to
modify permanent custody of the parties’ now
five-year-old daughter (Minor Child). After
a hearing on the issue, the trial court denied
Father’s motion to modify because he failed to
meet the burden of proof set forth in Gibbons
v. Gibbons, 1968 OK 77, 442 P.2d 482. Based on
Father’s failure to produce a record sufficient
to show the trial court’s ruling was contrary
to the weight of the evidence, we presume
the trial court did not err and affirm its
decision denying Father’s motion to modify
permanent custody.
¶2 Pursuant to the parties’ divorce decree,
filed October 22, 2001, Mother had custody of
Minor Child and Father had visitation rights.
Father filed a motion to modify custody on
June 21, 2005, alleging, among other things,
medical and dental neglect, lack of proper
supervision, and drug and alcohol abuse by
Mother, as well as suspicious behavior of a
sexual nature by Minor Child that required
further investigation by medical and psychological professionals. On July 8, 2005, Father
filed an application for emergency temporary
custody alleging and attaching the narrative
statement of Robert Westcott, M.D., which
indicates possible sexual abuse of Minor Child.
The trial court granted Father’s application for
Vol. 78 — No. 20 — 7/28/2007
emergency temporary custody July 19, 2005,
until further hearing and pending the outcome of an investigation into the matter by the
Department of Human Services (DHS).
¶3 The burden is on the parent seeking to
modify permanent custody to establish: (a)
that, since the making of the order sought
to be modified, there has been a permanent,
substantial and material change of conditions
which directly affect[s] the best interests of the
minor child, and (b) that, as a result of such
change in conditions, the minor child would
be substantially better off, with respect to its
temporal and its mental and moral welfare, if
the requested change in custody be ordered.
See Gibbons v. Gibbons, 1968 OK 77, ¶12, 442
P.2d 482, 485; see also Daniel v. Daniel, 2001 OK
117, ¶17, 42 P.3d 863, 869. After a hearing, the
trial court found Father failed to meet the Gibbons criteria and ruled custody of Minor Child
shall revert to Mother, with Father to have
visitation rights per its prior order. The trial
court further directed both parties to attend
certain parenting programs, with Minor Child
to have counseling. It is from that order Father
filed the present appeal.
¶4 Custody and visitation are matters of
equitable cognizance and are left to the sound
discretion of the trial court. See Kahre v. Kahre,
1995 OK 133, 916 P.2d 1355. Accordingly, we
review custody modification decisions for
abuse of discretion. See Casey v. Casey, 2002 OK
70, ¶23, 58 P.3d 763, 770. We will not disturb
the trial court’s decision regarding a motion
to modify custody unless it is clearly against
the weight of the evidence so as to constitute an abuse of discretion. See Williamson v.
Williamson, 2005 OK 6, ¶5, 107 P.3d 589, 591.
¶5 In making a custody determination, the
best interests of the child are of paramount
concern. See Gorham v. Gorham, 1984 OK 90,
¶13, 692 P.2d 1375, 1378. “One who challenges
the trial court’s determination on custody,
based on the best interests of the children,
has the burden of demonstrating an abuse of
discretion, and must put forth the evidence
relied upon to establish the trial court’s error
and must affirmatively show how this evidence shows the trial court’s decision to have
been contrary to the children’s best interests.”
Shaw v. Hoedebeck, 1997 OK CIV APP 69, ¶11,
948 P.2d 1240, 1243, citing David v. David, 1969
OK 164, 460 P.2d 116, Gibbons v. Gibbons, supra,
and Gorham v. Gorham, supra. Absent such a
Vol. 78 — No. 20 — 7/28/2007
showing, the trial court’s determinations are
presumptively correct and we will not reverse
the custody award. See Hoedebeck, ¶11, 948 P.2d
at 1243, citing Carpenter v. Carpenter, 1982 OK
38, 645 P.2d 476.
¶6 “The appellant bears the undivided
responsibility for producing to a court of
review a record that will adequately demonstrate error in the trial court’s decree because
the findings are contrary to the weight of evidence. The appealing party must include in
the record for appeal all materials necessary
for corrective relief.” Ray v. Ray, 2006 OK 30,
¶12, 136 P.3d 634, 637. “An appellant bears
total responsibility for including in the appellate record all materials necessary for corrective relief.” Hulsey v. Mid-America Preferred Ins.
Co., 1989 OK 107, ¶7, 777 P.2d 932, 936; Hamid
v. Sew Original, 1982 OK 46, ¶7, 645 P.2d 496,
497.
¶7 We will not presume error on appeal.
See Fleck v. Fleck, 2004 OK 39, ¶12, 99 P.3d
238, 240-41. “The appellant must affirmatively
show the alleged error from the record on
appeal. Otherwise, the Court will presume
that no prejudicial error was committed by the
trial court.” Id. In the absence of a complete
record, we must presume the trial court did
not err. See Hamid v. Sew Original, 1982 OK
46, ¶7, 645 P.2d 496, 497. “Without examining
all the evidence considered by the trial court
at that hearing, we cannot conclude, as we
must in order to reverse, that the trial court’s
decision was clearly against the weight of the
evidence.” Martin v. Martin, 2004 OK CIV APP
55, ¶13, 92 P.3d 717, 719, citing In the Matter of
the Estate of Fields, 1998 OK CIV APP 129, ¶12,
964 P.2d 955, 959.
¶8 Here, the only items from a multi-day
trial Father designated for inclusion in the
appellate record are transcripts of the testimony of three of his own witnesses. Father
further limited such excerpts to those witnesses’ testimony on direct examination only.
No other evidence from the trial, whether
documentary or testimonial in nature, appears
in the record before us on appeal. The substandard record Father chose to submit for our
review fails to disclose those factors necessary
for this Court to analyze in determining where
the clear weight of the evidence lies, and is
insufficient, therefore, to show the trial court
committed error.
¶9 AFFIRMED.
1851
ADAMS, J., and JOPLIN, P.J., concur.
2007 OK CIV APP 61
IN RE THE MARRIAGE OF: DONALD
G. WOODARD, Petitioner/Appellant, v.
BEVERLY R. WOODARD, Respondent/
Appellee.
No. 103,432. May 18, 2007
OKLAHOMA COUNTY, OKLAHOMA
HONORABLE DONALD L. DEASON,
TRIAL JUDGE
AFFIRMED
Martha Tehan, LAW OFFICE OF MARTHA
TEHAN, Oklahoma City, Oklahoma, for Petitioner/Appellant,
Raymond L. Vaughn, Jr., Matthew L. Winton,
VAUGHN & WINTON, P.L.L.C., Edmond,
Oklahoma, For Respondent/Appellee.
OPINION BY CAROL M. HANSEN, Presiding Judge:
¶1 Petitioner, Donald G. Woodard, [Husband] and Respondent, Beverly R. Woodard,
[Wife] were married in September 1984. Since
1977, Husband had been a firefighter, first
with the Edmond Fire Department, and then
in 1980, with the Oklahoma City Fire Department. In February 1997, Husband had worked
as a firefighter for twenty years. At that time,
he was eligible for retirement and a monthly
service retirement pension.1 [Plan A]. Husband did not retire at that time.
¶2 On April 1, 2000, in lieu of terminating
employment and accepting a service retirement pension, Husband enrolled in the Oklahoma Firefighters Deferred Option Plan.2
[Plan B] Pursuant to the deferred option plan,
Husband’s effective retirement date would be
April 1, 2005.
¶3 On December 30, 2004, Husband suffered a heart attack while on the job. He did
not return to work after that date. During his
recuperation, pursuant to 11 O.S. 2005 Supp.
§49-109, Husband applied to the State Board
of the Oklahoma Firefighters Pension and
Retirement System for a disability in the line
of duty pension,3 available to every member
once he accrues twenty years of service. While
awaiting its decision, Husband was placed “
. . . on a regular pension and/or was able ‘to
serve out under the Injury Leave Provision
1852
of 49-109 or under the sick leave provisions
offered through the City of Oklahoma City
Fire Department.’”
¶4 On April 15, 2005, the State Board
approved Husband’s application for the disability pension in the amount of $3,398.374
effective April 1, 2005. The date of April 1,
2005, was also the effective date of Husband’s
retirement.
¶5 On April 28, 2005, Husband filed his Petition for Dissolution of Marriage. Wife filed an
Answer to Petitioner’s Petition and a Cross
Petition for Divorce. After a trial of the matter,
the trial court entered a Decree of Dissolution
of Marriage wherein, among other things, the
trial court found the parties had separated on
April 28, 2005. The trial court also found:
THE COURT FURTHER FINDS that the
Petitioner’s disability in line of duty pension, Plan A, of the Oklahoma Firefighter’s
Pension and Retirement System pension
plan is divisible marital property, whereby
the circumstances of this case are distinguished from those in Christmas v. Christmas, 1990 OK 16, 787 P.2d 1267, in that the
Petitioner herein qualified for both Plan A
and Plan B before he filed his Petition for
Dissolution of Marriage and that the only
benefit to the Petitioner involves the tax
treatment of Plan A funds.5
¶6 As a result, the trial court awarded to
Husband, as his separate property, among
other things, “Sixty-five and twenty-five one
hundredths percent (65.25%) of his future
benefits from Firefighter’s Pension benefit
Plan A, subject to the QDRO in favor of the
Respondent recited hereinbelow.” The trial
court awarded to Wife, as her separate property, among other things, “Thirty-four and
seventy-five one hundredths percent (34.75%)
of the Petitioner’s future benefits from the
Firefighter’s Pension benefit Plan A, by way
of QDRO whereby the Respondent shall be
responsible for payment of all taxes associated
with her gross share.”6 Husband appeals.
¶7 Husband argues Husband’s Plan A disability benefits are not jointly acquired property subject to division. He argues Christmas
v. Christmas, 1990 OK 16, 787 P.2d 1267, is
applicable. In Christmas, the wife filed a petition for divorce in December 1987. Two weeks
later, the firefighter husband began a three
month stay in a local sanatorium. He sought
Vol. 78 — No. 20 — 7/28/2007
disability benefits for job stress. Effective July
1988, he was awarded disability in the line of
duty benefits, pursuant to 11 O.S. §49-109. The
trial court held the husband’s disability benefits were jointly-acquired property subject to
equal division for the entire time it is paid.
¶8 The Supreme Court reversed the trial
court’s decision, applying a “replacement
analysis” to the facts. A replacement analysis
“ . . .focuses on the replacement nature of the
benefits and classifies benefits according to the
nature of the assets they replace.” Blumberg,
Marital Property Treatment of Pensions, Disability Pay, Workers’ Compensation, and Other
Wage Substitutes: An Insurance, or Replacement
Analysis, 33 UCLA L.Rev. 1250, 1294 (1986).
The Supreme Court reasoned:
All wage continuation plans are deferred
compensation and function as insurance.
Retirement pensions insure against superannuation, survival beyond retirement
age. They function as a substitute for life
savings. If a worker was not provided
retirement coverage, the additional wages
received would presumably be saved for
superannuation. These savings, earned
during the marriage, would unquestionably constitute joint property.
Disability benefits, on the other hand, do
not substitute for savings. Rather, they
insure against loss of wages from disability
before superannuation. Disability benefits
received after divorce replace post-coverture wages that would be the earner’s
separate property. Thus, while retirement
pensions replace joint property, disability
benefits replace separate property. This
difference in the replacement nature of the
benefits requires that disability benefits
be classified as the disabled worker’s
separate property.
The Court further reasoned the nature of the
husband’s benefits determined the classification, not the fact the benefits are termed a
“disability pension” in Title 11. “The Legislature chose to use the designation ‘pension’ to
describe firefighters’ retirement, disability and
even death benefits. See Okla.Stat. Tit.11, §§49106, 49-109 & 49-112 (1981 & Supp. 1989).”
The benefits awarded to the husband replaced
the wages he would receive but for his disability,7 and, thus, on remand, the Supreme
Court instructed the trial court to consider
Vol. 78 — No. 20 — 7/28/2007
husband’s disability pension as his separate
property.
¶9 Husband points out the State Board
approved him for a disability pension effective
April 1, 2005. Therefore, because he was disabled prior to his retirement date, his disability benefits should be awarded to him as his
separate property, not subject to division.
¶10 We disagree. Utilizing the replacement
analysis in Christmas v. Christmas, supra., this
Court must determine the nature of the disability benefits.8 If these benefits replace postcoverture wages Husband would receive but
for his disability before superannuation, they
are his separate property. However, under
the present facts, Husband’s disability benefits, applied for shortly before his scheduled
retirement, were approved on the very date of
his retirement. Because Husband’s retirement
became effective at the exact same time his disability benefits were approved, these benefits
do not replace post-coverture wages Husband
would receive but for his disability, Instead,
the nature of his disability benefits function as
a substitute for life savings, insurance against
superannuation, survival beyond retirement.
Therefore, these benefits are marital property
subject to division. As a matter of law, the trial
court did not err in determining Husband’s
disability benefits are marital property subject
to division. See, Thompson v. Thompson, 2004
OK CIV APP 2, 105 P.3d 346.
¶11 Additionally, Mr. Jones, executive director of the Oklahoma Firefighters Pension and
Retirement Systems, testified a service retirement pension is available to a firefighter once
he obtains twenty years of service, regardless
of physical condition. The disability benefit
is available because the firefighter is no longer able to perform firefighter duties. The
calculation of benefits for a firefighter for a
service retirement pension and the calculation
of benefits for a firefighter with twenty years
of service applying for disability benefits is
“identical.”
¶12 In this case, two weeks after Husband
was awarded disability benefits, effective on
the date of his retirement, Husband filed his
petition for dissolution of his marriage to
Wife. But for Husband’s unilateral decision to
change his Part A service retirement pension
to a disability benefit, his service retirement
pension would be a marital asset subject to
division. Thus, as a matter of equity,9 the trial
1853
court did not abuse its discretion in determining his disability in the line of duty pension
is divisible marital property and in awarding
Wife thirty-four and seventy-five one hundredths percent (34.75%) of Husband’s future
benefits from Plan A by way of QDRO, and
awarding Husband sixty-five and twenty-five
one hundredths percent (65.25%) of his future
benefits from Plan A. See Dixon v. Dixon, 1996
OK CIV APP 61, 919 P.2d 28.
¶13 Husband contends that, pursuant to 11
O.S.2005 §49-106 .1(F), Plan B, the Firefighters Deferred Option Plan payment is deemed
a “disability in the line of duty” payment,
and, thus, he claims, is not divisible as marital property. He also points out that because,
pursuant to the statute, “contribution of the
member shall cease,” he did not contribute
any marital funds to Plan B.
¶14 This statute addresses the situation
wherein a member becomes disabled and
receives a disability benefit while participating
in the Plan B Deferred Option Plan. Section 49106.1(F) provides the Employer payments for
members who elect Plan B shall be “ . . . an
in line of duty disability payment.” Further,
section 49-109(D) provides that no firefighter
shall accrue additional service time while
receiving a disability benefit. Here, Husband
began receiving disability benefits after he had
completed Plan B Deferred Option Plan and
was retired. The nature of Husband’s Plan B
benefits, which are a deferment of his service
retirement pension, function as a substitute
for life savings-a retirement benefit. The trial
court did not abuse its discretion in awarding Wife fifty-percent (50%) of Husband’s
Plan B pension with a valuation date of April
28, 2005, and did not abuse its discretion in
awarding Husband fifty-percent (50%) of his
Plan B pension with a valuation date of April
28, 2005. See Dixon v. Dixon, supra.
¶15 Finally, Husband contends it was against
the weight of the evidence and an abuse of
discretion for the trial court to omit any award
of Wife’s Sisters of Mercy Defined Benefit Plan
because it was marital property. He presented
undisputed evidence the value of her benefit
plan $10,033.77. Wife does not dispute her
benefit plan was acquired during coverture.
¶16 In Allen v. Allen, 1983 OK CIV APP 66,
672 P.2d 325, the husband appealed the trial
court’s property division because the trial
court awarded the wife the couple’s residence.
1854
The Court of Civil Appeals stated, “. . .[t]he
failure to allow [the husband] some interest in
that property seemingly was unreasonable.”
However the Court noted that even though
it was not mentioned in the divorce decree,
the husband testified he had accrued pension rights that would pay him $567.95 per
month three years from the trial date. “The
trial court’s failure to include the pension in
the marital estate for division had the effect
of awarding it to the husband.” The Court
further held:
Considering the award (by silence) of the
entire pension to defendant, we conclude
that the overall result of the trial court’s
property division is an equitable one. In
fact, defendant received a greater proportion of the marital estate.
¶17 In the present case, Husband complains
the property division is inequitable because
the trial court awarded Wife approximately
35% of his monthly disability payment, a complaint addressed above. However, he does not
complain he is entitled to a portion of Wife’s
benefit plan, only that the trial court’s “omission” of the benefit plan is inequitable. There
was no “omission” of Wife’s benefit plan. The
trial court’s failure to include it in the marital
estate had the effect of awarding it to Wife.
AFFIRMED.
BUETTNER, J., and BELL, J., concur.
1. Title 11 O.S. 2005 Supp. Section 49-106 (A) provides that any
firefighter who reaches the firefighter’s normal retirement date shall
be entitled, upon written request, to retire from such service and
be paid from the Oklahoma Firefighters Pension and Retirement
System a monthly pension equal to the members’ accrued retirement
benefit.
2. Title 11 O.S. 2005 Supp. Section 49-106.1 provides that in lieu of
terminating employment and accepting a service retirement pension,
any member of the Oklahoma Firefighters Pension and Retirement
System who has not less than twenty years of creditable service and
who is eligible to receive a service retirement pension, may elect to
participate in the Oklahoma Firefighters Deferred Option Plan and
defer the receipts of benefits. Section 49-106.1(C) provides “[t]he duration of participation in the Oklahoma Firefighters Deferred Option
Plan for active firefighters shall not exceed five (5) years. . . . .
D. When a member begins participation in the Oklahoma Firefighters Deferred Option Plan, the contribution of the member
shall cease. The employer contributions shall continue to be paid .
. . . Employer contributions for members who elect the Oklahoma
Firefighters Deferred Option Plan shall be credited equally to the
Oklahoma Firefighters Pension and Retirement System and to the
Oklahoma Firefighters Deferred Option Plan account. The monthly
retirement benefits that would have been payable had the member
elected to cease employment and receive a service retirement shall
be paid into the member’s Oklahoma Firefighters Deferred Option
Plan account.
....
F. A member in the plan shall receive, at the option of the member,
a lump sum payment from the account equal to the payments to the
account or an annuity based upon the account of the member or may
elect any other method of payment if approved by the Board of Trustees. If a member becomes so physically or mentally disabled while in,
Vol. 78 — No. 20 — 7/28/2007
or in consequence of, the performance of his duty as to prevent the
effective performance of his duties that the State Board approves an
in line of duty disability pension, the payment from the account shall
be an in line of duty disability payment.”
3. Section 49-109(A) provides: “Whenever any firefighter serving in any capacity in a regularly constituted fire department of a
municipality shall become so physically or mentally disabled while
in, or in consequence of, the performance of the firefighter’s duty as
to prevent the effective performance of the firefighter’s duties, the
State Board may, upon the firefighter’s written request, . . . retire the
firefighter from active service, and if so retired, shall direct that the
firefighter be paid from the System a monthly pension equal to the
greater of:
1. Fifty percent (50%) of the average monthly salary which
was paid to the firefighter during the last thirty (30) months of the
firefighter’s service; or
2. Two and one-half percent (2½%) of the firefighter’s final average salary multiplied by the member’s years of credited service, not
to exceed thirty (30) years, provided such firefighter has completed
twenty (20) or more years of credited service.
B. . . . If a firefighter participates in the Oklahoma Firefighters
Deferred Option Plan pursuant to Section 49-106.1 of this title, the
firefighter’s disability pension provided pursuant to this subsection
shall be reduced to account for the firefighter’s participation in the
Oklahoma Firefighters Deferred Option Plan.
***
D. No firefighter shall accrue additional service time while
receiving a disability pension; provided further, that nothing herein
contained shall affect the eligibility of any firefighter to apply for and
receive a retirement pension after the firefighter’s normal retirement
date; provided further, that no firefighter shall receive retirement benefits from the System. Any member or beneficiary eligible to receive
a monthly benefit pursuant to this section may make an election to
waive all or a portion of monthly benefits.”
4. The sum of $3,398.37 is gross per month.
5. At the March 10, 2006, hearing wherein it entered its ruling on
the matter, the trial court stated, “. . . Petitioner had completed his 20
years under the Plan A, and the entirety of Plan B before he rightfully
sought and was granted disability status, and I believe it would be
inequitable to characterize the Plan A retirement as a disability, and
therefore, a completely separate asset. I believe that the Part A retirement became a marital asset subject to division at the completion of
his 20 years of service.”
6. The trial court also awarded Husband, as his separate property,
“Fifty-percent (50%) of his Oklahoma Firefighter’s pension Plan B
with a valuation date of April 28, 2005, subject to the QDRO in favor
of the Respondent recited herein below.” The trial court awarded
Wife, as her separate property, “Fifty-percent (50%) of the Petitioner’s
Oklahoma Firefighter’s pension Plan B with a valuation date of April
28, 2005, by way of QDRO” The value of the Plan B pension at the
time of trial (March 6, 2006) was approximately $251,107.75.
7. It appears the husband in Christmas v. Christmas, was not yet
eligible for a retirement pension.
8. Husband argues the replacement analysis should be expanded
in this case to the “analytic approach” to address the “nature” of his
pain, suffering, loss of good health, or disfigurement, and his loss of
future earnings. The analytic approach, which closely resembles the
replacement approach, attempts to determine the underlying nature
of a recovery before characterizing it as either marital or separate
property. Although Husband cites an Oklahoma case using the analytic approach for classification of a workers compensation award
and another Oklahoma case using the analytic approach for classification of a personal injury claim, Husband cites no Oklahoma authority
wherein the analytic approach was applied in classifying firefighter’s
retirement benefits or disability benefits. The trial court did not err
in applying the replacement approach in analyzing the nature of his
disability benefits.
9. Pursuant to 43 O.S. 2001 Section 121, in dividing marital property, the trial court “ . . . shall . . . make such division between the parties as may appear just and reasonable . . . as may be just and proper
to effect a fair and just division thereof.”
Vol. 78 — No. 20 — 7/28/2007
2007 OK CIV APP 62
CITY OF STILLWATER, a municipal
corporation, Petitioner, v. SCOTT
C. OLIVER and THE WORKERS’
COMPENSATION COURT, Respondents.
No. 103,728. May 23, 2007
PROCEEDING TO REVIEW AN ORDER OF
THE WORKERS’ COMPENSATION COURT
HONORABLE RICHARD L. BLANCHARD,
TRIAL JUDGE
VACATED AND REMANDED
Dennis J. McGrath, Assistant City Attorney,
Stillwater, Oklahoma, for Petitioner,
Bob Burke, Oklahoma City, Oklahoma, for
Respondent Scott C. Oliver.
Opinion by Kenneth L. Buettner, Judge:
¶1 Petitioner City of Stillwater (Employer)
seeks review of an Order of the Workers’ Compensation Court which found that Respondent
Scott C. Oliver sustained an accidental injury
arising out of and in the course of employment. The trial court abused its discretion and
erred as a matter of law in excluding relevant
evidence proffered by Employer. Employer’s
offer of proof, which the trial court refused
to hear, indicated the eyewitness testimony
would have addressed the issue of whether
Oliver in fact engaged in the activity he
claimed caused his injury. Employer asserts
the statute, on which the trial court relied to
exclude the evidence, is unconstitutional. The
record does not present a question of constitutionality; rather, the trial court erred as a matter of law in relying on 85 O.S.Supp.2005 §17
as a basis to exclude relevant evidence under
the circumstances presented by this case. We
vacate and remand for a new trial.
¶2 Oliver filed his Form 3 March 3, 2006.
Oliver, a firefighter, claimed a November 3,
2005 single incident injury to the back, occurring when “he was assisting an accident victim and felt a pain in his back.” Employer filed
its Form 10 March 16, 2006, in which it denied
Oliver sustained an accidental injury arising
out of and in the course of employment. In its
Form 10, Employer offered the following affirmative defense: “(e)ye witnesses at the scene
dispute (Oliver’s) report that he was injured
while lifting an accident victim. Statements
from co-workers indicate (Oliver) did not at
any time lift the patient as he claims.” Oliver
1855
later filed an amended Form 3 in which he
claimed an aggravation of his injury occurred
November 9, 2005.
¶3 Trial was held July 26, 2006 and the trial
court issued its Order August 16, 2006. The
trial court found that on November 3, 2005,
Oliver sustained an accidental injury to the
lumbar spine, arising out of and in the course
of his employment.1 The portion of the Order
at issue here is paragraph 4, which provides:
THAT Dr. Thomas Craven is the “treating
physician” in this claim. The reports/
opinions of Dr. Thomas Craven have been
introduced into evidence as (Oliver’s)
exhibit # 3. The statutory presumption
afforded these opinions has not been rebutted by (Employer). Therefore, the court is
obligated to accept Dr. Craven’s opinions
as fact in this case.
¶4 Employer seeks review of this Order,
claiming that the trial court erred in applying
85 O.S.Supp.2005 §17(A) to exclude Employer’s witnesses’ testimony. Employer claims
§17(A) is an unconstitutional delegation of
the trial court’s authority to determine causation. We will not disturb the decision of
the Workers’ Compensation Court unless the
order is unsupported by competent evidence
or includes an error of law. Parks v. Norman
Municipal Hosp., 1984 OK 53, 684 P.2d 548,
552.
¶5 No witnesses testified at trial. At issue
was whether Oliver sustained an injury arising out of and in the course of employment. Employer stipulated that Oliver was
employed by the City of Stillwater on November 3 and 9, 2005 and that Dr. Craven, the
treating physician, found that Oliver had a
medical condition. Employer objected to Dr.
Craven’s report as to the cause of Oliver’s condition. The parties agreed Dr. Craven was the
treating physician selected by Employer, that
Dr. Craven had issued a competent medical
report on the issue of compensability, and that
Employer did not file a formal objection to Dr.
Craven’s report.
¶6 The trial court then explained:
based on the Court’s interpretation of the
new law,2 which is that if the treating physician has given us a competent medical
report on the issue of compensability and
need for medical treatment, and the presumption has not been rebutted pursuant
1856
to the statute, which means the appointment of a Court-appointed independent
medical examiner, who would then examine the report to see if it was based on
objective medical evidence, the presumption then has not been rebutted and the
Court is to accept that presumption in this
proceeding.
The court then stated it understood Employer
had an additional defense based on that interpretation of 85 O.S.Supp.2005 §17, which was
that the statute is an unconstitutional delegation of judicial authority and a denial of
due process. Employer agreed with the trial
court’s statement of Employer’s objection.
The trial court then announced it accepted Dr.
Craven’s report.
¶7 The trial court then stated to counsel for
Employer:
I also understand that you wish to make
an offer of proof as far as what your witnesses would have testified to if the Court
would allow them to testify.
(Counsel for Employer): That’s correct, .
...
The Court: Because the statute doesn’t
provide for witnesses to rebut the presumption of the treating physician, Court
will not allow your witnesses to testify, but
the Court will excuse itself from the courtroom while you make an offer of proof on
the record.
The judge left the room and Employer gave
an offer of proof based on Oliver’s deposition
testimony. Employer asserted that Tommy
Low was Oliver’s partner on the ambulance
on November 3, 2005. Employer averred Low
would have testified that when he and Oliver
responded to the accident in which Oliver
alleged he was injured, Low never saw Oliver
have any physical contact with the patient nor did
Oliver lift the patient. Employer next asserted
Mike Clark, another firefighter, would testify
that “he was on the back board helping to
carry this patient” and never saw Oliver carry
the patient or treat the patient in any way.
Employer averred Clark was the firefighter
who helped carry the patient from the accident
vehicle to the ambulance and helped load the
patient into the ambulance, “thereby keeping
Mr. Oliver away, because Mr. Oliver could not
carry the patient. Mr. Clark would testify that
Mr. Oliver never had any physical contact with
Vol. 78 — No. 20 — 7/28/2007
this patient.” Employer next asserted that Dale
Parrish was the Fire Captain on November 3,
2005 and also responded to the accident and
never saw Oliver treat the patient. Employer
noted that Oliver had testified in his deposition that he was at the head of the backboard
carrying the patient, and Employer averred that
Parrish would directly dispute Oliver’s claim by
testifying that Parrish carried the head of the backboard.
¶8 Employer summarized by saying that
each of its witnesses would testify that Oliver
did not have contact with nor carry the patient.
Employer asserted that the witnesses would
have disputed all of Oliver’s deposition testimony and would have testified that Oliver
was not injured while working November 3,
2005, and that indeed, Oliver participated in
a ropes course November 4, 2005 and was not
injured at that time.
¶9 Counsel for Oliver then stated:
So that our record is complete and (Oliver) has adequate testimony in the record,
we’ll make an offer of proof of the deposition of May 22nd, 2006, taken of Scott
Oliver, since he has not been allowed to
testify and will not be allowed to testify
today to prove the elements of causation
and accidental injury as Claimant’s 1, and
as Claimant’s 2, we would offer for purposes of the record the medical narrative
of Dr. John Hallford, dated May 16, 2006,
as Claimant’s 2. If he were allowed to testify, he would testify per the report.
The judge then returned to the courtroom and
announced “(a)ll right. Now, the report of Dr.
Craven.” Oliver then offered as Claimant’s
Exhibit 3 Dr. Craven’s November 28, 2005
report, and his “office and treatment notes,
up through and including the June 7th, 2006
report addressing the issues of major cause
directed medical evidence per the statute.”
Employer announced it had no other objection
than the ones it previously announced. The
trial court admitted Oliver’s Exhibit 3 and the
trial ended.
¶10 Dr. Craven’s June 7, 2006 letter to
Oliver’s counsel states, in pertinent part. “I
initially saw (Oliver) on November 28, 2005,
roughly three weeks after he sustained an
injury while extricating a 325 pound victim
from a motor vehicle accident.3 He states that
after this injury he had immediate pain into
Vol. 78 — No. 20 — 7/28/2007
his back and radiating into his left leg. His
MRI scan revealed significant disc degeneration and small protrusion. It is my feeling that
the injury of 11/3/05 is the major cause and is
supported by objective medical evidence.” Dr.
Craven’s November 28, 2005 letter to Employer
states, in pertinent part “(Oliver) . . . sustained
an injury on 11/03/05 while extricating a 325pound victim from a motor vehicle accident
while working for (Employer). He states he
has had two previous back injuries that both
resolved after two to three weeks.”
¶11 In this review proceeding, Employer
argues that the trial court erred as a matter of
law in finding that §17 limits the determination of causation exclusively to the treating
physician. Employer asserts the statute is an
unconstitutional delegation of judicial authority. However, we find the trial court simply
erred in applying §17 in this case. We find the
constitutionality of §17 is not implicated, and
we therefore do not address that claim. See
Board of County Com’rs of Muskogee County v.
Lowery, 2006 OK 31, ¶14, 136 P.3d 639, 649 (as
a general rule, where legal relief is available
on alternative, non-constitutional grounds,
appellate courts avoid reaching a determination on the constitutional basis); State ex rel.
Fent v. State ex rel. Oklahoma Water Resources
Bd., 2003 OK 29, ¶12, 66 P.3d 432 (“prudential rule of necessity” directs that constitutional issues must not be decided absent strict
necessity).
¶12 The Workers’ Compensation Act was
amended in 2005, and the current version of
§17, quoted above, had gone into effect at the
time of Oliver’s alleged injury. That section is
titled “disability” and it is addressed to the
determination of the percentage of disability
attributable to a claimed work-related injury.
To be compensable under the Act, an injury
still must arise out of and in the course of
employment. 85 O.S.Supp.2005 §3(13); §11(A).
A workers’ compensation claimant bears the
burden of proving that his injury arose out
of and in the course of employment. Walkey
v. Triad Drilling Co., 1995 OK CIV APP 131,
911 P.2d 1222 (cert. denied). Nothing in §17(A)
alters this requirement. Section 17(A) addresses the determination of disability caused by
an injury arising out of and in the course of
employment. Section 17 presumes the arising out of and in the course of element has
been proven by the claimant, and the amount
of disability attributable to that injury is the
1857
issue to be determined under the direction of
§17(A).
¶13 Dr. Craven’s reports are presumptive
for the fact that Oliver’s back is injured and
the type of injury. And as Dr. Craven noted,
Oliver reported two prior back injuries. If
the evidence showed that Oliver did lift the
patient on November 3, 2005, then the treating
physician’s opinion on whether Oliver’s back
injury was caused by the lifting on November
3 or by either of the prior injuries would be
presumed correct according to §17(A). But
the fact issue of whether Oliver was involved
in the activity he claimed caused the injury
at the time and in the manner in which he
claimed, i.e., while working for Employer, and
specifically whether he even lifted the patient
on November 3, 2005, is for the trial court to
decide based on relevant evidence. Here the
trial court excluded relevant evidence of that
fact, including even Oliver’s own testimony of
what he was doing at the time of his claimed
injury and how the injury occurred.
¶14 The trial court’s interpretation of §17
would effectively remove any need for trial.
The parties would simply submit the treating
physician’s report, the trial court would adopt
it, and the matter would be settled. While
§17 now includes “causation” as an issue the
treating physician’s report is presumed to
determine, the Act continues to require the
trial court to make the determination that the
claimant has sustained an accidental injury
arising out of and in the course of employment. At most, the reference to causation in
§17 means that the treating physician must
determine whether the injury, which arose out
of and in the course of employment, caused
the disability found. The fact of an injury arising out of and in the course of employment
is not for the treating physician to determine.
To hold otherwise would mean that if the
treating physician reported the employee was
injured at work on a day the employee was
not at work, the employer would be barred
from presenting any witnesses on the factual
question of arising out of and in the course
of employment. Or, according to Oliver, the
employer would have to object to the treating
physician’s report, and request an independent medical examiner, who instead of testifying to medical findings, would be expected to
testify the employee was not at work on the
day the claimed injury occurred, as the only
rebuttal contemplated by §17.
1858
¶15 “Relevant evidence” means evidence
having any tendency to make the existence
of any fact that is of consequence to the
determination of the action more probable
or less probable than it would be without the
evidence. 12 O.S.2001 §2401. All relevant evidence is admissible, unless its probative value
is substantially outweighed by the risk of
unfair prejudice, confusion of the issues, misleading the jury, undue delay, needless presentation of cumulative evidence, or unfair and
harmful surprise. 12 O.S.2001 §2402-§2403.
The decision to admit or exclude relevant
evidence is left to the trial court’s discretion.
Lerma v. Wal-Mart Stores, Inc., 2006 OK 84, ¶32,
148 P.3d 880. This rule applies in the Workers’
Compensation Court. Beets v. Metropolitan Life
Ins. Co., 1999 OK 15, 995 P.2d 1071.
¶16 As previously noted by the Oklahoma
Court of Civil Appeals, the Workers’ Compensation Act requires the trial court to consider
all offered relevant evidence:
Section 3.6 of the Workers’ Compensation
Act provides:
A. All the evidence pertaining to each case,
except upon agreed orders, shall, insofar
as may be possible, be heard by the Judge
initially assigned to the case. Upon the
completion of such hearing or hearings,
the Judge hearing the cause shall make
such order, decision or award as is proper,
just and equitable in the matter. . . .
The statute appears to require the trial
court to take evidence before entering an
order determining a claim. However, we
hold the court is not required to take evidence when a claimant presents a “claim”
for which the Workers’ Compensation
Act and the cases interpreting it afford no
relief to a claimant. We do not assume the
Legislature intended to require evidence
when the injury complained of is not compensable.
Carlile v. City of Oklahoma City/ Public Information Service, 1993 OK CIV APP 77, 856 P.2d
1008.
¶17 Oliver responds that the trial court correctly applied the statute. Oliver asserts the
purpose of the amendments to §17 is to avoid
the problem of “dueling doctors” in which
each side of a workers’ compensation case
presents a doctor’s report reaching opposite
conclusions. Oliver asserts Employer had the
Vol. 78 — No. 20 — 7/28/2007
option, under §17, to object to Dr. Craven’s
report, in which case an independent medical examiner would have been appointed.
Oliver asserts that Employer’s mistake was in
attempting to introduce lay witnesses on the
issue of causation. Under the circumstances
presented by this case, apparently an independent medical examiner would have been
required not to examine Oliver, but to report
that eyewitnesses reported that Oliver never
had contact with the very patient he claimed
to have injured his back by lifting. The eyewitnesses’ testimony was also relevant as bearing
on the credibility of Oliver’s claim and his
relation of factual causation to the treating
physician.
¶18 The Workers’ Compensation Act limits
awards of compensation to injuries arising
out of and in the course of employment. The
amended §17(A) adds a presumption to the
correctness of the treating doctor’s opinion
on the amount of disability and whether a
compensable injury caused the disability. The
burden remains on the claimant to prove a
compensable injury which arose out of and
in the course of employment. The record here
includes no testimony from Oliver describing
how he was injured while working, nor does
the record include Employer’s eyewitness testimony purportedly refuting Oliver’s claim.
This relevant evidence is missing because
the trial court erred in finding the evidence
was inadmissible according to §17(A).4 The
trial court abused its discretion as a matter of
law in excluding evidence directly relevant to
the essential issue of whether Oliver in fact
sustained an injury arising out of and in the
course of employment. Without evidence on
that essential issue, we must vacate the Order.
We remand for retrial of Oliver’s claim.
VACATED AND REMANDED.
HANSEN, P.J., and BELL, J., concur.
1. Also in the Order, but not relevant to this decision, the trial
court found Oliver sustained a re-injury November 9, 2005, also arising out of and in the course of employment; reserved determination
of the rates of compensation and the determination of permanent disability; and directed Employer to provide medical treatment, including surgery, by Dr. Craven.
2. The new law at issue here is the amended version of 85
O.S.Supp.2005 §17(A). That section provides (emphasis added):
§17. Determination of disability — Independent medical examiners — Termination of temporary total disability
A. 1. The determination of disability shall be the responsibility of the
Workers’ Compensation Court. Any claim submitted by an employee
for compensation for permanent disability must be supported by competent medical testimony which shall be supported by objective medical
findings, as defined in Section 3 of this title, and which shall include an
evaluation by the treating physician or an independent medical examiner if there is no evaluation by the treating physician, stating his or her
Vol. 78 — No. 20 — 7/28/2007
opinion of the employee’s percentage of permanent impairment and whether
or not the impairment is job-related and caused by the accidental injury or
occupational disease. A copy of any written evaluation shall be sent
to both parties within seven (7) days of issuance. Medical opinions
addressing compensability and permanent impairment must be
stated within a reasonable degree of medical certainty. For purposes
of this section, a physician shall have the same meaning as defined in
Section 14 of this title and shall include a person licensed by another
state who would be qualified to be a licensed physician under the
laws of this state.
2. Any party may object to the opinion of the treating physician
by giving written notice to all other parties and to the Court. Upon
receipt of such notice, if the parties fail to agree on the selection of
an independent medical examiner, the Court shall randomly select
an independent medical examiner who shall be afforded a reasonable opportunity to examine the employee together with all medical
records involved and any other medical data or evidence that the
independent medical examiner may consider to be relevant. The
independent medical examiner shall issue a verified written report on
a form provided by the Administrator to the Court stating his or her
finding of the percentage of permanent impairment of the employee
and whether or not the impairment is job-related and caused by the
accidental injury or occupational disease(.)
a. There shall be a rebuttable presumption in favor of the treating
physician’s opinions on the issue (sic) of temporary disability, permanent disability, causation, apportionment, rehabilitation or necessity
of medical treatment. Any determination of the existence or extent
of physical impairment shall be supported by objective medical evidence, as defined in Section 3 of this title.
b. The Independent Medical Examiner shall be allowed to examine the claimant, receive any medical reports submitted by the parties
and review all medical records of the claimant. If the Independent
Medical Examiner determines that the opinion of the treating physician is supported by the objective medical evidence, the Independent Medical Examiner shall advise the Court of the same. If the
Independent Medical Examiner determines that the opinion of the
treating physician is not supported by objective medical evidence,
the Independent Medical Examiner shall advise the Court of the same
and shall provide the Court with his or her own opinion. In cases in
which an independent medical examiner is appointed, the Court shall
not consider the opinion of the Independent Medical Examiner unless
the Independent Medical Examiner determines that the opinion of the
treating physician is not supported by objective medical evidence,
in which case the Court shall follow the opinion of the Independent
Medical Examiner, the opinion of the treating physician or establish
its own opinion within the range of opinions of the treating physician
and the Independent Medical Examiner. If the Court does not follow
the opinion of the treating physician, the Court shall set out its reasons for deviating from the opinion of the treating physician.
3. Any party may request the deposition testimony of the treating
physician or the Independent Medical Examiner providing a written
medical report on the issue (sic) of temporary disability, permanent
disability, causation, apportionment or rehabilitation. The party
requesting the deposition testimony of any such physician shall be
responsible for the reasonable charges of the physician for such testimony, preparation time, and the expense of the deposition.
3. As noted above, Oliver’s deposition testimony was not admitted, but Oliver offered it as an offer of proof. In his deposition, Oliver
testified that he did not extricate the victim from his car. Oliver testified that he helped to lift the patient from the ground to the ambulance by standing at the head of the backboard.
4. See Rush Truck Center/OKC v. Watson, 2007 OK CIV APP 37,
___ P.3d ___, (cert. denied), which held that while §17 states there is a
rebuttable presumption in favor of the treating physician’s opinion,
§17(A) does not exclude other evidence. In Watson, the claimant submitted a report from an independent medical examiner, which supported the trial court’s determination of percentage of disability. The
employer argued the trial court erred in considering the report of the
IME because of the presumption in favor of the treating physician’s
opinion. Proof of arising out of and in the course of employment was
not an issue in Watson, but the opinion established §17(A) does not
exclude relevant evidence.
1859
2007 OK CIV APP 63
DALLAS E. CURLING, III, Petitioner,
v. CITY CHEVROLET, TRAVELERS
INDEMNITY COMPANY OF AMERICA,
and THE WORKERS’ COMPENSATION
COURT, Respondents.
No. 104,009. May 18, 2007
PROCEEDING TO REVIEW AN ORDER
OF A THREE-JUDGE PANEL OF THE
WORKERS’ COMPENSATION COURT
Robert A. Forbes, Jr., Midwest City, Oklahoma,
for Petitioner,
H. Grady Parker, Jr., LOONEY, NICHOLS &
JOHNSON, Oklahoma City, Oklahoma, for
City Chevrolet and Travelers Indemnity Company of America.
OPINION
ADAMS, Judge:
¶1 Claimant Dallas E. Curling, III, appeals
an order of a three-judge panel of the Workers’ Compensation Court which applied 85
O.S.Supp.2005 § 22(3)(d) and limited his award
of temporary total disability (TTD) benefits
to eight weeks. The Workers’ Compensation
Court’s finding that Claimant sustained a
soft tissue injury is supported by competent
medical evidence and is sustained. However,
the application of the 8-week limit on TTD
benefits in § 22(3)(d) is vacated, and the matter remanded for entry of an order consistent
with the statutory analysis adopted in this
opinion.
¶2 Claimant filed a claim for accidental
injuries to his right shoulder and to other
parts of his body sustained when he tripped
and fell over a curb on August 25, 2005, while
working as a car salesman for City Chevrolet
(Employer, collectively with its insurer Travelers Indemnity Company of America). Subsequently, an order was entered finding he had
sustained an accidental personal injury to his
right shoulder which arose out of and was
in the course of his employment.1 The trial
judge found Claimant was temporarily totally
disabled and in need of medical treatment
and awarded him TTD benefits for a period
of 24 weeks and four days and continuing
for a period “not to exceed 52 weeks” from
the date of the order. On Employers en banc
appeal, the three-judge panel vacated several
1860
paragraphs of the trial judge’s order, entered
substitute paragraphs, and added one paragraph. As modified, the trial judge’s order was
affirmed.
¶3 The order entered by the three-judge
panel added a finding that Claimant’s workrelated injury to his right shoulder was an
aggravation of a pre-existing condition. The
panel also found Claimant’s injury was a
non-surgical soft tissue injury pursuant to
§ 22(3)(d) and surgery had not been recommended, and therefore TTD benefits were
limited to 8 weeks.
¶4 Claimant first argues that his injury was
not a soft tissue injury as defined in § 22(3)(d)
but is instead an aggravation of prior bone
and joint injuries from a 1997 gunshot wound.2
The panel specifically found “THAT at the
time of the trial, claimant’s injury is a ‘nonsurgical soft tissue’ injury pursuant to Title 85
§22(3)(d).” We must sustain that factual determination if it is supported by any competent
evidence. Davis v. Southwestern Bell Telephone,
2006 OK 48, 139 P.3d 892.
¶5 The record contains medical expert opinion that Claimant had re-injured his right
shoulder and had a “probable rotator cuff
aberration and tear.” Section 22(3)(d) defines
a soft tissue injury as “damage to one or more
of the tissues that surround bones and joints”
including but not limited to “sprains, strains,
contusions, tendonitis [sic], and muscle tears”3
and cumulative trauma. The injury described
falls into the statutory classification of a soft
tissue injury. This stands as competent medical evidence supporting the finding that a soft
tissue injury was sustained. However, that
does not end our review in this matter.
¶6 Claimant also argues the 8-week limit in
§ 22(3)(d) does not apply because that provision is followed by another provision stating
that “[i]n all cases of soft tissue injury, the
employee shall only be entitled to appropriate
and necessary medical care and temporary
total disability as set out in paragraph 2 of
this section, unless there is objective medical
evidence of a permanent anatomical abnormality.” He argues that the benefit periods set
forth in § 22(3)(d) and § 22(2) are in irreconcilable conflict, and that legislative intent must
be gleaned from the Workers’ Compensation
Act as a whole in order to give each provision effect and with a view to its purpose and
Vol. 78 — No. 20 — 7/28/2007
objective. Walker v. Group Health Services, Inc.,
2001 OK 2, 37 P.3d 749.
¶7 Claimant cites Gee v. All 4 Kids, 2006 OK
CIV APP 155, 149 P.3d 1106, which examined
this same statutory conflict. In Gee, another
division of this Court applied rules for statutory construction and found that the limits at the
beginning of § 22(3)(d) directly conflict with
its later provisions referencing “paragraph 2
of this section,” and that the later references
control and permit an aggregate award of up
to 300 weeks of TTD for soft tissue injuries.
¶8 Employer argues that legislative intent
was not addressed and the construction
applied in Gee nullifies the enactments limiting soft tissue injuries and is “at odds with
what the Legislature intended.” However,
Employer’s arguments turn on the principle
that legislative amendments are presumed
to change existing law and ignores that the
statutory text referring to “paragraph 2 of this
section” was enacted simultaneously with
and as part of the same amendment to § 22
adding the earlier text in § 22(3)(d) which the
Workers’ Compensation Court applied here to
limit TTD benefits to 8 weeks. The reference
to paragraph 2 stands later in the same statute regarding soft tissue injuries. As the last
in position in the same statute, its provisions
control here. Earnest Inc. v. LeGrand, 1980 OK
180, 621 P.2d 1148.
¶9 Under the rules of statutory construction
applicable to the 2005 amendments to § 22,
we find persuasive the analysis in Gee that the
conflict created by the later reference to “paragraph 2 of this section” with earlier text in that
same statute must be resolved by recognizing
that the later text prevails over that set forth
earlier. Therefore, Claimant’s entitlement to
TTD for this injury is not limited to 8 weeks.
The panel’s order so limiting Claimant’s TTD
must be vacated, and the case is remanded for
entry of an order consistent with this opinion.
JOPLIN, P.J., concurs; and
MITCHELL, V.C.J., dissenting:
¶10 I disagree with the majority’s conclusion
that of the conflicting paragraphs in §22, the
later in position must prevail. The Supreme
Court has not so held. Earnest, Inc. v. LeGrand,
1980 OK 180, 621 P.2d 1148, relied upon by
the majority opinion and by the Court of Civil
Vol. 78 — No. 20 — 7/28/2007
Appeals in Gee v. All 4 Kids, 2006 OK CIV APP
155, 149 P.3d 1106 holds and is quoted in Gee
that “...one matter to consider is that the last
in order or position and arrangement possibly should prevail.” That the order of the
paragraphs or their position in the statute is a
proper factor to consider, and that the last in
order “possibly should prevail” are certainly
reasonable guidelines in construing an ambiguity. Our Supreme Court in Earnest, however,
only recognized this as a guideline and not as
a strict rule of construction that would necessarily preclude the consideration of other
factors that might be helpful in construing the
statute.
¶11 I respectfully dissent.
1. The issue of injury to other parts of his body was reserved for
future hearing.
2. He cites to a portion of a medical expert report stating that an
x-ray showed he had sustained “some inferior subluxation of the
humeral head in the glenoid and there are some bony changes of
the bony head indicative of some possible subtle or mild avascular
necrosis changes” and argues these anatomical structures were not
soft tissue.
3. The rotator cuff is a c-shaped structure of muscles and tendons
allowing the shoulder to rotate. See Stedman’s Medical Dictionary,
377 (25th ed.1990).
2007 OK CIV APP 64
PORTIA McCLELLAN, Plaintiff/Appellant,
v. WILLIAM WILBER, Defendant/Appellee.
No. 103,498. April 13, 2007
TULSA COUNTY, OKLAHOMA
HONORABLE RUSSELL P. HASS, TRIAL
JUDGE
REVERSED AND REMANDED
Chris Knight, Tulsa, Oklahoma, for Plaintiff/
Appellant,
John R. Woodard, Curtis J. Roberts, Millicent
L. Hughes, FELDMAN, FRANDEN, WOODARD, FARRIS & BOUDREAUX, Tulsa, Oklahoma, for Defendant/Appellee.
OPINION BY CAROL M. HANSEN, Presiding Judge:
¶1 Plaintiff/Appellant, Portia McClellan,
seeks review of the trial court’s order granting her motion for attorney fees and costs but
awarding an amount far less than she requested. We reverse and remand with instructions
to the trial court to make findings on the
record regarding hours spent and reasonable
hourly rates, the value placed on additional
factors, and the specific facts and computation
1861
supporting the attorney fee award, pursuant
to the Oklahoma Supreme Court’s directive in
State ex rel. Burk v. City of Oklahoma City (Burk),
1979 OK 115, 598 P.2d 659.
¶2 McClellan sued Defendant/Appellee,
William Wilber, for negligent property damage to her vehicle, and won a judgment
based on a jury verdict in the amount of
$2,485.52 plus interest. She moved pursuant
to 12 O.S.2001 §940 for an award of attorneys
fees of $10,755.00 and costs of $283.50. Wilber objected, asserting the fee requested was
excessive. McClellan served a subpoena upon
Wilber’s insurer for legal billings related to the
case. Wilber moved to quash the subpoena,
claiming attorney-client privilege and attorney
work-product immunity from discovery. The
trial court granted the motion and quashed
the subpoena. After hearing the motion for
attorney fees, the trial court entered an order
stating,
The Court took this matter under
advisement following the conclusion of
the evidentiary hearing....
The Court accepts in part and adopts in part
the arguments and authorities set forth in the
Plaintiff’s Motion, Supplemental Motion, and
Briefs filed from February 9, 2006 to March 7,
2006.
IT IS THEREFORE ORDERED,
ADJUDGED, AND DECREED that the
Plaintiff is given Judgment for $283.50 in
costs and attorney’s fees in the amount of
$3,420.00.
¶3 McClellan appeals from this order, contending, among other things, the trial court
erred in failing to calculate a lodestar fee
based on the number of hours expended times
a reasonable hourly rate and failing to state
facts supporting adjustment of the lodestar
fee. We agree. The Oklahoma Supreme Court
set forth the following directive in Burk, 598
P.2d at 663:
A particular word of caution to the trial
judges of Oklahoma is here warranted.
When a question on appeal presents the
1862
issue of reasonableness of attorney’s fees
awarded by the court, abuse of discretion
by the trial judge is the standard of review.
Therefore, the trial court should set forth
with specificity the facts, and computation to support his award. While the
compensatory fee is not all that difficult
a problem on review if the trial court has
made findings into the record regarding
hours spent and reasonable hourly rates,
the value placed on additional factors will
be different in each case. Obviously, the
reasonable value to be given for incentive
fees should bear a reasonable relationship
to the aggregate hourly compensation.
To comply with the Burk directive, “the trial
court must first compute, on the record, the
lodestar fee.” Peters v. American Income Life Ins.
Co., 2003 OK CIV APP 62, 77 P.3d 1090, 1102.
However, the attorney fee may not be based
on time alone. The trial court must decide
whether the lodestar rate should be increased
or reduced based on the Burk factors. The fee
must bear a reasonable relationship to the
amount in controversy. Id. “The final calculation, and the supporting findings, shall also be
set forth in the judgment.” Id. at 1103.
¶4 Because the trial court failed to follow the
Burk directive, we must reverse and remand
for redetermination of McClellan’s request
for attorney fees. Because the fee has not yet
been determined in accordance with the Burk
procedure, we do not reach the issue of the
reasonableness of the attorney fee awarded.
We find no abuse of discretion in quashing
the subpoena of the legal billing records of
Wilber’s insurer.
¶5 For the foregoing reasons, we REVERSE
and REMAND with instructions to the trial
court to make findings on the record regarding hours spent and reasonable hourly rates,
the value placed on additional factors, and the
specific facts and computation supporting the
attorney fee award, pursuant to Burk.
REVERSED AND REMANDED
BUETTNER, J., and BELL, J., concur.
Vol. 78 — No. 20 — 7/28/2007
OBA/CLE and OBA/MAP present
Acrobat for New Users: An Introduction to Adobe Acrobat 8
For Lawyers
(A Telephone CLE)
DATE:
TIM E:
September 12, 2007
1:00 p.m - 2:00 p.m
CLE CREDIT:
TUITION:
$100 No discounts. Register online at www.legalspan.com /okbar/telephone.asp
CANCELLATION
POLICY:
About the Program:
PDF docum ents are everywhere nowadays. Attorneys and law office staff encounter the ubiquitous PDF file on
a daily basis - in governm ent form s, electronic court filings, litigation docum ents, electronic newsletters, and
Internet downloads, to nam e a few. To work effectively with PDF files you need m ore than the free Acrobat
Reader.
Objectives:
This session provides an introduction to the full version of Adobe Acrobat and the basics of working with PDF
files, including creating and navigating PDF files, scanning and optical character recognition, and adding
bookm arks and com m ents to PDF files.
About David L. M asters:
A general practitioner in Montrose, Colorado, his practice focuses on real estate and business m atters,
transactions, and litigation. He received his J.D. from the University of Montana in 1986. David writes and
speaks frequently on the use of inform ation technology in the practice of law. His publications include The
Lawyers’s Guide to Adobe Acrobat, Am erican Bar Association, Law Practice Managem ent Section (2004) along
with, numerous articles and presentations on the use of inform ation technology in the practice of law.
Register online at www.legalspan.com/okbar.telephone.asp
Vol. 78 — No. 20 — 7/28/2007
1863
NOTICE
OBA Legal Ethics Advisory
Panel Issues Opinion
Applications requesting its modification, correction, clarification or withdrawal must be made in accordance with Legal Ethics Advisory Panel rules governing appeals and received by the panel coordinator on or
before Monday, Aug. 27, 2007. Unless an application for the revision or withdrawal of an advisory opinion
is timely received, the opinion shall become final.
The rules governing appeals may be found on the OBA Web site at www.okbar.org/news/news_06/
EthicsPanel.htm.
Send comments to Panel Coordinator Roger R. Scott, 525 South Main, Suite 1111, Tulsa, OK 74103.
OBA Legal Ethics Advisory Opinion
2007-OK LEG ETH 03
Inquiry:
May a law firm or lawyer contract with a client
that an award of statutory awarded attorneys
fees be added to the amount of damages award
and that the contingency fee percentage will be
taken from the aggregate of the two amounts?
Opinion:
A law firm or lawyer may contract with a client
agreeing that an award of statutory attorney
fees be added to the award of damages and the
contingency fee percentage will be taken from
the aggregate of the two amounts when the
contingency fee agreement complies with the
statutory maximum1 and the Oklahoma Rules
of Professional Conduct.2 However, a lawyer
may not contract with a client agreeing that the
lawyer will receive the total amount of both
the statutory attorney fee and the contingency
fee.
I
Rule 1.5(a) of the Oklahoma Rules of Professional Conduct requires that in every instance,
a lawyer’s fee be reasonable.3 Contingent fees
are controlled by Rule 1.5(c) which requires
that:
“A contingent fee agreement shall be in
writing signed by the client and shall state the
method by which the fee is to be determined,
including the percentage or percentages
1864
that shall accrue to the lawyer in the event
of settlement, trial or appeal; litigation and
other expenses to be deducted from the recovery; and whether such expenses are to be
deducted before or after the contingent fee is
calculated. The agreement must clearly notify
the client of any expenses for which the client
will be liable whether or not the client is the
prevailing party. Upon conclusion of a contingent fee matter, the lawyer shall provide the
client with a written statement stating the outcome of the matter, and, if there is a recovery,
showing the remittance to the client and the
method of determination.”
Contingent fees are not appropriate in every
case. Rule 1.5(d) states that:
d) A lawyer shall not enter into an arrangement for, charge, or collect:
(1) any fee in a domestic relations matter,
the payment or amount of which is contingent upon the securing of a divorce or upon
the amount of alimony or child support, or
property settlement in lieu thereof; or
(2) a contingent fee for representing a defendant in a criminal case.
Okla. Stat. tit. 5 ch. 1 App. 3-A Rule 1.5.4 See
also State ex rel. Okl. Bar Ass’n. v. Fagin, 1992
OK 118, 848 P.2d 11 (1992).
II
Normally each party is responsible for paying its own attorney fees. However, attorney
Vol. 78 — No. 20 — 7/28/2007
fees may be awarded when authorized by
statute. See Okla. Stat. tit. 12 § 696.4(A) (providing that “[a] judgement, decree, or appealable order may provide for costs, attorney fees,
or both of these items . . . .”) See also American
Biomedical Group, Inc. v. Norman Regional Hospital Authority, 1993 OK CIV APP 83 ¶ 50 n.
11; 855 P.2d 1074 (citing Burrows Construction
Company v. Independent School District No. 2 of
Stephens County, 1985 OK 57 ¶ 6 n.2; 704 P.2d
1136, 1137). Attorney fees may also be awarded
under the terms of an enforceable contract. See
id.; see also Okla. Stat. tit. 12 § 1101.1(A) (requiring that a settlement offer of judgment will be
deemed to include any costs or attorney fees
otherwise recoverable unless it expressly provides otherwise”). Under fee-shifting statutes
prevailing plaintiffs are entitled to recover
attorney fees from the defendants.5
Statutorily-awarded attorney fees are treated
similarly to statutorily-awarded costs in that
they are taxed and collected as are other costs
of the action. However, unless stated otherwise, attorney fees are not included in costs.
See Finnell v. Jebco, 2003 OK 35 ¶ 9, 67 P.3d 339
(citing Okla. Stat. tit. 12 § 940(A) which states
that “[i]n any civil action to recover damages
for the negligent or willful injury to property
and any other incidental costs related to such
action, the prevailing party shall be allowed
reasonable attorney’s fees, court costs and
interest to be set by the court and to be taxed
and collected as other costs of the action”). See
also GRP of Texas, Inc., v. Eateries, Inc., 2001 OK
53, 27 P.3d 95 (noting that pursuant to Okla.
Stat. tit. 12 § 978, “statutory allowance of costs
does not include attorney’s fees, unless stated
otherwise, Wilson v. Glancy, 1995 OK 141,
913 P.2d 286, 291, and these costs are taxed
‘of course’ by the Clerk”) (citations omitted);
Chamberlin v. Chamberlin, 1986 OK 30, ¶ 14, 720
P.2d 721, 728 (explaining that counsel fees on
appeal, like taxable appellate costs, must be
authorized by an appellate court in the case in
which the services were performed); Goodman
v. Norman Bank of Commerce, 1977 OK 113, 565
P.2d 372 (reversing and remanding where the
trial court awarded attorney fees, discovery
costs and general fees in one lump sum with
instructions to eliminate the improper attorney
fees from the total amount awarded as costs
and to award only the costs of the appeal).
The attorney fee award belongs to the prevailing party, not the lawyer, and it is that
party’s right to waive, settle, or negotiate that
Vol. 78 — No. 20 — 7/28/2007
eligibility. See State ex. rel. Okla. Bar Ass’n. v.
Weeks, 1998 OK 83 ¶ 25, 969 P.2d 347 (citing
Evans v. Jeff D., 475 U.S. 717, 106 S. Ct 1531
(1985)). See also Calif. State Bar’s Standing Committee on Professional Responsibility and Conduct,
Formal Opinion # 1989-114, 1989 WL 253262
(1989) (requiring that in representing a plaintiff
in a federal civil rights action or similar action,
an attorney is obligated to inform the client
that statutory attorney’s fees are the client’s
property which the client may waive as a condition of settlement); Calif. State Bar’s Standing Committee on Professional Responsibility and
Conduct, Formal Opinion # 1994-136, 1994 WL
621614 (1994) (finding that private agreements
that require the client to be personally responsible for attorney fees if the client chooses
to waive or otherwise impair the attorney’s
ability to pursue the recovery of fees from the
defendant are not prohibited so long as the
agreement is fair and equitable, with sufficient
disclosure to the plaintiff); Association of the Bar
of the City of NY, Committee on Professional and
Judicial Ethics, Formal Opinion # 1987-4, 1987
WL 346194 (5/13/87) (noting that pursuant to
the U.S. Supreme Court’s decision in Jeff D.,
it is not unethical per se for defense counsel
to propose settlements conditioned on the
waiver by plaintiffs of attorney’s fees under feeshifting statutes).
III
Courts have recognized that statutory fee
awards can coexist with private contractual
fee arrangements, including contingency fee
arrangements. See Pony v. L.A. County, 433 F.3d
1138, 1145 (9th Cir. 2006), cert denied, Mitchell
v. L.A. County, 547 U.S. (2006) (holding that
civil rights plaintiffs may “freely assign the
proceeds of [the] judgment or the value of [the]
recovery” to become “contractually and personally bound to pay an attorney a percentage
of the recovery, if any. . . .”) See also Cambridge
Trust Co. v. Hanify & King Prof’l. Corp., 721
N.E.2d 1, 6 (Mass. 1999) (observing that “[a]n
attorney is free, subject to the provisions of
the rules of professional conduct, to negotiate
such terms as attorney and client may agree
on concerning the manner in which awards of
attorney fees are to be divided”); Bishop Coal
Co. v. Salyers, 380 S.E.2d 238, 249 n. 10 (W. Va.
1989) (recognizing that fee shifting statutes do
not impair the right of the lawyer and client to
make a private fee arrangement).
1865
As a general rule, when a contingent fee
agreement is ambiguous or silent as to how
statutory fee awards are to be treated, the
contingent percentage should be calculated
on the total amount minus the court-awarded
fees, with the attorney awarded the greater
of the two amounts. Cambridge Trust Co., 721
N.E.2d at 7; see also Heldreth v. Rahimian, 637
S.E.2d 359, 369 n. 16 (W. Va. 2006) (noting the
preferred approach, absent a specific agreement, is to use the statutory fee award to offset
the amount owed under the contingency fee
agreement).
This approach was utilized in Venegas v.
Mitchell, 495 U.S. 82, 88, 110 S. Ct. 1679 (1990),
where the contractual contingency fee was
greater than the statutory fee award. The Plaintiff brought an action under 42 U.S.C. § 1983
alleging that police officers falsely arrested him
and conspired to deny him a fair trial through
the knowing presentation of perjured testimony. The Plaintiff and his attorney signed a contingent fee contract providing that the attorney
would receive a fee of forty per cent (40%) of
the gross amount of any recovery. The contract
stated that any statutory attorney fee would be
applied dollar for dollar to the amount of the
contingency fee. The Plaintiff obtained a judgment in the amount of $2.08 million of which
$406,000 was due the attorney under the terms
of the contingency fee agreement. The Court
awarded $117,000 in attorney’s fees, of which
$75,000 was attributable to work done by this
attorney. Id. at 85.
The Court determined that the contractual
contingency fee agreement was not invalidated by the statutory fee award; rather, the
statutory fee award belonged to the client for
the purpose of offsetting the contractual contingent fee. The Court noted the purpose of
fee-shifting in the federal civil rights act is to
assist potential plaintiffs in securing reasonably competent counsel, not to avoid honoring
their contractual agreements even if their contractual liability is greater than the statutory
award that they may collect from losing opponents. Id. at 89. The Court emphasized that:
[i]f . . . plaintiffs may waive their right to
seek an attorney fee entirely, there is little
reason to believe that they may not assign
part of their recovery to an attorney if they
believe that the contingency arrangement
will increase their likelihood of recovery. A
contrary decision would place . . . plaintiffs
1866
in the peculiar position of being freer to
negotiate with their adversaries than with
their own attorneys.
Id. at 88. The Court held that the contractual
contingent fee agreement was clearly enforceable despite the fee shifting statute, and despite
the fact that the contingency agreement was
greater than the statutory fee award.
IV
Although the terms of a statutory fee award
may be negotiated and agreed to in the fee
contract, a client may challenge the agreement
when its terms are “plainly unreasonable”
under the Rules of Professional Conduct. See
Cambridge, 721 N.E.2d at 7. In Oklahoma, a
contingency fee agreement that entitles the
attorney to keep the total amount of both the
contingency fee and the statutory fee award is
unreasonable and will not be enforced. State
ex. rel. Okla. Bar Ass’n. v. Weeks, 1998 OK 83,
969 P.2d 347.
In Weeks, the statutory attorney fee award
was greater than the contingency fee amount.
The plaintiff in a civil rights action signed a fee
agreement with the attorneys which provided
that the attorneys would retain the full amount
of any court awarded or negotiated fee and
fifty percent (50%) of any judgment or settlement paid by the defendants. The attorney
intentionally designed the agreement to provide that the statutory fee would be retained
“in addition” to the contingent fees. Id. at ¶ 32.
The attorneys then negotiated a settlement for
damages in the amount of $50,000 and agreed
to accept a reduced contingency fee of forty
percent (40%) which was $20,000.
Thereafter, without advising or consulting the
plaintiff, the attorneys negotiated a settlement
with the defendants for attorney’s fees and
costs in the amount of $23,417.68 The plaintiff
was unable to find out from his attorneys the
total amount of money the attorneys collected;
he finally learned the total settlement amount
by going to the federal courthouse and checking the court file. Id. at. ¶ 7. Of the $73,417.68
total amount paid by the defendants for damages and fees, the plaintiff received $30,000
while the attorneys kept $43,417.68 for themselves which was unwarranted under existing
law.6 The Court held that dual recovery of both
the full statutory award and the contingent fee
was per se unreasonable in violation of Rule
Vol. 78 — No. 20 — 7/28/2007
1.5(a) of the Oklahoma Rules of Professional
Conduct. Id. at ¶ 44.
In addition, the Court found the attorneys
violated Rule 1.4 of the Oklahoma Rules of
Professional Conduct for failing to communicate with the plaintiff about the negotiation
and settlement of the statutory attorney fee.7
Id. at ¶ 45. The Court noted that the attorneys’ failure to communicate with the client
regarding the negotiations and settlement of
the statutory attorney fee interfered with the
client’s right to “waive, settle or negotiate that
eligibility.” Id. at ¶ 46 (citations omitted). Thus,
the Court recognized the client’s right to enter
into a contractual agreement with the attorney regarding statutory fee awards; however,
the Court found that an agreement affording
the attorney the full amount of both the
contingent fee and statutory fee award was not
enforceable.
V
The Weeks case did not involve a contingency
fee contract that included a negotiated percentage of the aggregate of the statutory awarded
attorney fee and the damage award. This
type of agreement has not been specifically
addressed in Oklahoma. However, the Oklahoma Supreme Court has held that attorney fees
are a proper part of a client’s cause of action or
claim. See Truelock v Dell City, 1998 OK 64 ¶ 19,
967 P.2d 1183 (denying additional attorney fees
under Okla. Stat. tit. 12 § 940 where the plaintiffs received the full amount allowable under
the Governmental Tort Claims Act, explaining
that the “claim for attorney fees under § 940
was a part of their ‘claim’ arising out of [the
defendant’s] negligence”).
Other jurisdictions have acknowledged
that such agreements are enforceable. See Heldreth v. Rahimian, 637 S.E.2d 359, 369 n. 16
(W. Va. 2006)(citations omitted) (noting that
“[d]epending on the terms of the contract,
‘reasonable attorneys’ fees’ can either be taken
as a credit toward the lawyers’s contingent
share or they can be added to the gross award
and the total sum split.”) In Cambridge Trust
Co. v. Hanify & King Prof’l. Corp., 721 N.E.2d
1 (Mass. 1999), the court affirmed a judgment
allowing an attorney fee pursuant to a contingent fee agreement that included damages and
a percentage of the attorney fee award. The
court noted: “[w]e can find no authority that
makes it per se unreasonable for an attorney
and client to agree that the attorney is to be
Vol. 78 — No. 20 — 7/28/2007
paid a percentage of a total award, which may
include damages as well as court-awarded
attorney’s fees.” Id. at 6. (Emphasis added).
The Cambridge decision is consistent with
section 38 of the Restatement (Third) of the
Law Governing Lawyers (2000) (hereinafter,
the “Restatement”). According to Comment f
to Section 38, the lawyer may share in the fee
award “if the parties had reached an enforceable contract so providing or if the law or the
tribunal so directed.” The Comment further
states that “[s]uch a contract . . . would not
ordinarily constitute a client-lawyer business
arrangement subject to § 126 [Business Transactions Between a Lawyer and a Client].”
The Reporter’s Note to Comment f to Section
38 of the Restatement is instructive:
Payments by an opposing party. For payment of litigation sanctions to the client,
see Hamilton v. Ford Motor Co., 636 F.2d 745
(D.C. Cir. 1980). Authority holding that
attorney-fee awards should be credited
against the client’s contractual fee debt to
the lawyer unless the contract provides
otherwise includes Wilmington v. J.I. Case
Co., 793 F.2d 909 (8th Cir.1986); Wheatley v.
Ford, 679 F.2d 1037 (2d Cir. 1982); Chalmers
v. Oregon Auto. Ins. Co., 502 P.2d 1378 (Or.
1972); Commercial Union Ins. Co. v. Estate
of Plute, 356 So.2d 54 (Fla. Dist. Ct. App.
1978); Luna v. Gillingham, 789 P.2d 801,
805 (Wash. Ct. App.1990); see In re Atencio, 742 P.2d 1039 (N.M.1987) (disciplinary proceeding). When the attorney-fee
award is larger than the contractual fee,
some courts allow the lawyer to keep the
surplus even without a contractual provision so stating. Sullivan v. Crown Paper Bd.
Co., 719 F.2d 667 (3d Cir. 1983); Cooper v.
Singer, 719 F.2d 1496, 1507 (10th Cir. 1983);
see Sargeant v. Sharp, 579 F.2d 645, 649 (1st
Cir. 1978). Blanchard v. Bergeron, 489 U.S. 87,
109 S.Ct. 939, 103 L.Ed.2d 67 (1989), seems
to assume this result. The contrary view is
supported by the principles of construction
of § 18 and by the Supreme Court’s conclusion that attorney-fee awards belong to the
client, not the lawyer. Evans v. Jeff D., 475
U.S. 717, 730-32, 106 S.Ct. 1531, 1538-40,
89 L.Ed.2d 747 (1986); Venegas v. Mitchell,
495 U.S. 82, 110 S.Ct. 1679, 109 L.Ed.2d
74 (1990). See Benalcazar v. Goldsmith, 507
N.E.2d 1043 (Mass. 1987). A client-lawyer
contract might alter the result, but courts
1867
have held unreasonable and unenforceable contracts that give the lawyer both a
contractual and a statutory fee. Harrington
v. Empire Constr. Co., 167 F.2d 389 (4th Cir.
1948); In re Atencio, 742 P.2d 1039 (N.M.
1987); see Farmington Dowel Prods. Co. v.
Forster Mfg. Co., 421 F.2d 61 (1st Cir.1969).
But see Jensen v. Dept. of Transportation, 858
F.2d 721 (Fed. Cir. 1988).
(emphasis added).
As the Weeks Court emphasized, pursuant
to Rule 1.4, the attorney has an obligation to
adequately explain the client’s obligation to
pay for the attorney’s services in the pursuit
and collection not only of the damage award,
but also of a statutory attorney fee award. The
client may prefer to enter into a contingency
fee agreement for both rather than to pay
an hourly rate for either.8 When that occurs,
the attorney-client contingency fee contract
may include an attorney fee based upon a
percentage of both the damage award and
statutory fee award, assuming the percentage
is consistent with Oklahoma law.
VI
In conclusion, contractual contingent fee
agreements may be based upon the aggregate
of damages and statutorily-awarded attorneys fees if the agreement is consistent with
the Oklahoma Rules of Professional Conduct,
the agreement complies with the fifty percent
(50%) maximum required by Okla. Stat. tit. 5
§ 7, the agreement involves a full, fair and
equitable disclosure, discussion and understanding regarding such an aggregation, and
the total fee is reasonable.
1. “It shall be lawful for an attorney to contract for a percentage
or portion of the proceeds of a client’s cause of action or claim not to
exceed fifty percent (50%) of the net amount of such judgment as may
be recovered . . . .” Okla. Stat. tit. 5 ch. 1 § 7.
2. The current Oklahoma Rules of Professional Conduct have been
amended; the amended Rules will become effective on January 1,
2008. This opinion provides the amended Oklahoma Rules of Professional Conduct. See In re Application of the OBA to Amend The Rules of
Professional Conduct, 2007 OK 22, ___P.3d___ .
3. Okla. Stat. tit. 5 ch. 1 App. 3-A Rule 1.5. The factors to be considered in determining the reasonableness of a fee include the following:
1868
“(1) the time and labor required, the novelty and difficulty of the
questions involved, and the skill requisite to perform the legal
service properly;
(2) the likelihood, if apparent to the client, that the acceptance
of the particular employment will preclude other employment
by the lawyer;
(3) the fee customarily charged in the locality for similar legal
services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length of the professional relationship with
the client;
(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and
(8) whether the fee is fixed or contingent.”
Id. The amended comment (3) to Rule 1.5 explains:
Paragraph (a) requires that lawyers charge fees that are reasonable
under the circumstances. The factors specified in (1) through (8) are
not exclusive. Nor will each factor be relevant in each instance. . . .
4. The amended Comment (3) to Rule 1.5 states:
Contingent fees, like any other fees, are subject to the reasonableness standard of paragraph (a) of this Rule. In determining whether a
particular contingent fee is reasonable, or whether it is reasonable to
charge any form of contingent fee, a lawyer must consider the factors
that are relevant under the circumstances. Applicable law may impose
limitations on contingent fees, such as a ceiling on the percentage
allowable, or may require a lawyer to offer clients an alternative basis
for the fee. Applicable law also may apply to situations other than a
contingent fee, for example, government regulations regarding fees in
certain tax matters.
5. There are more than sixty federal fee-shifting statutes. See generally Marek v. Chesny, 473 U.S. 1, 43-51, 105 S. Ct. 3012 (1985) (Appendix
to opinion of Brennan, J., dissenting — listing sixty-three statutes).
6. The attorneys’ portion constituted approximately sixty percent
(60%) of the total recovery which exceeded the statutory maximum of
fifty percent (50%) set by Oklahoma law. See Okla. Stat. tit. 5 § 7.
7. Amended Rule 1.4 [Communication] states that:
(a) A lawyer shall:
(1) promptly inform the client of any decision or circumstance
with respect to which the client’s informed consent, as defined in Rule
1.0(e), is required by these Rules;
(2) reasonably consult with the client about the means by which
the client’s objectives are to be accomplished;
(3) keep a the client reasonably informed about the status of the
matter;
(4) promptly comply with reasonable requests for information;
and
(5) consult with the client about any relevant limitation on the
lawyer’s conduct when the lawyer knows that the client expects
assistance not permitted by the Rules of Professional conduct or other
law.
(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the
representation.
8. Amended Comment (5) to Rule 1.5 explains: An agreement
may not be made whose terms might induce the lawyer improperly
to curtail services for the client or perform them in a way contrary to
the client’s interest. For example, a lawyer should not enter into an
agreement whereby services are to be provided only up to a stated
amount when it is foreseeable that more extensive services probably will be required, unless the situation is adequately explained
to the client. Otherwise, the client might have to bargain for further
assistance in the midst of a proceeding or transaction. However, it is
proper to define the extent of services in light of the client’s ability to
pay. A lawyer should not exploit a fee arrangement based primarily
on hourly charges by using wasteful procedures. See also Comment (3)
to Rule 1.5 supra n. 4.
Vol. 78 — No. 20 — 7/28/2007
OBA/CLE presents
Negotiation Ethics: Winning Without Selling Your Soul
Part B
- A Telephone SeminarDATE:
TIM E:
November 20, 2007
1:00 p.m - 2:00 p.m
CLE CREDIT:
Legal Education Com m ission for 1.0 hour of m andatory CLE Credit, including 1.0 hours of
TUITION:
CANCELLATION
POLICY:
About the Program:
In real estate, it’s “location, location, location.” In negotiation, it’s “reputation, reputation, reputation.” A
trustworthy reputation – once lost – m ay be im possible to regain. In this telesem inar, negotiation expert Marty
Latz will discuss two ethically challenging negotiation scenarios. Each will highlight:
•
•
•
Morality: Is it right to engage in certain behavior?
Ethics: Is it ethical under the Rules of Professional Conduct and/or legal?
Effectiveness: Does it work?
You will learn in this session – focused on negotiation leverage – how to:
•
•
•
Skillfully and ethically play your leverage cards
Gain leverage when seem ingly powerless
Deal effectively with bluffers and walkout artists
Register online at www.legalspan.com /okbar.telephone.asp
Vol. 78 — No. 20 — 7/28/2007
1869
Mandates Issued
THE SUPREME COURT
Friday, June 22, 2007
101,556Linda M. Hayes v. Dan and Cynthia
Cantrell.
103,704Kerrastan Ice v. Macerich SCG, limited partnership: Macerich SCG,
limited liability company; Macerich
Property Management Company,
limited liability company and Service
Management Systems, Inc., for profit
corporation and Service Management
Systems, Inc., for profit corporation.
102,606Jo Ann M. Lowery v. Echostar Satellite Corporation dba Dish Network.
103,876Jeffery J. Smith, M.D. v. Deaconess
Hospital, et al.
102,673Oklahoma Oncology & Hematology
P.C., an Oklahoma Professional Corporation dba “Cancer Care Associates” v. US Oncology, Inc., a Delaware
Corporation and AOR Management
Company of Oklahoma, Inc., a Delaware Corporation.
103,924Tom Wilcox v. R.W. Collier aka Robert
W. Collier.
101,150St. John Medical Center v. Sarah Bilby
and the Workers’ Compensation
Court.
102,803Michael Hayes v. Catherine Maude
Hayes.
102,875Cherokee Nation v. Michael Nomura, Co-Director of Heritage Family Services, in his official capacity
as Administrator of the Oklahoma
Interstate Compact on the Placement
of Children and American Adoptions
of Florida, Inc.
102,929Mary Linda McCall, an individual
v. Chesapeake Energy Corporation,
Oklahoma Corporation and Chesapeake Operating, Inc., an Oklahoma
Corporation.
103,248Barbara Stinson v. Voyager Indemnity
Insurance Company.
103,263In the Matter of M.J.S., a minor child.
David Brian Stark and Debra Ann
Stark v. Ronald Jones & Pamela
Jones.
103,567BancFirst, formerly known as First
Southwestern Bank, Frederick, Oklahoma v. Raymond Wayne Shook and
Lori Dee Shook.
103,582Christopher Cowan, Lisa Cowan, as
next friend of D.C. and K.C. and H.C.,
minors v. City of Tulsa, Oklahoma.
1870
104,062Mill Creek Lumber & Supply Company and Mill Creek Carpet & Tile Company v. Michael Murry and Dolores
Murry, individually and dba Marathon Homes Corporation, et al.
104,141Wenjest Corporation and Benchmark
Insurance Company v. Ronald Wagstaff and The Workers’ Compensation
Court.
104,240In the Matter of the Adoption of
M.J.S., a minor child. Ronald Jones
and Pamela Jones v. Oklahoma
Department of Human Services.
104,542Wachovia Bank, NA, as executor of
The Estate of Elizabeth Fuller Gardner, et al v. Maynard Oil Company,
Inc., et al.
104,548Stephanie Livingston v. John Botts
and Christopher Daniel Botts.
102,126Thomas L. McGinnity and Claudia
D. McGinnity, husband and wife v.
Peggy J. Kirk, a/k/a Peggy Jean Kirk,
a/k/a Peggy Kirk, James Merle Kirk,
and Mary Komonce.
102,154David Earl Shero v. Grand Saving
Bank.
102,560Helen NcNeil, formerly Helen Wiss v.
Hugh G. Adams and Sharon Adams.
102,823Angela D. Erwin, individually and on
behalf of all others similarly situated
v. Directv, Inc. a Corporation.
Vol. 78 — No. 20 — 7/28/2007
102,828In the Matter of the Assessments for
the Year 2005 of Certain Real Property
Owned by Askins Properties, LLC;
Askins Properties, LLC v. Oklahoma
County Assessor and the Board of
Equalization of Oklahoma County.
103,264In the Matter of SG, SG & SG. State
of Oklahoma v. Debra Guffin and
Shawn Guffin.
103,606James S. Kroeker v. The Corporation
Commission of the State of Oklahoma, Comprised of the Honorable
Jeff Cloud, Chairman, the Honorable
Denise A. Bode, Vice Chairman, and
the Honorable Bob Anthony, Commissioner and Chesapeake Operation
Inc and Chesapeake Exploration Limited Partnership and Walter Duncan
Oil, LP.
103,799Dexter Axle and the Insurance Company of the State of Pennsylvania v.
D.J. Koon and the Workers’ Compensation Court.
103,925Standley Corporation v. ACRS 2000
Corporation , an Oklahoma Corporation and ACRS, an Oklahoma Corporation.
104,124Luke Franklin v. Virginia Franklin.
104,196In the Matter of the Adoption of S.J.C.,
a minor child. Sheena R. Claborn v.
Brian Claude Ridley and Tracy Dawn
Ridley.
104,249Collie Hutto v. Randy Lee and Kenneth Ratliff, individually and dba
Mobile Services and Mobile Services,
Inc.
104,280Valeri Slemmons (now Mettry) v.
David R. Slemmons.
104,429Design Graphics, Inc., and Stadium
Stores, Inc. v. Merchant Processing,
LLC and Walter Johnson.
104,457Cecilia L. Austin and Ronald L. Austin v. Ron Alexander, II dba Antique
and Rod Shop.
104,476Roger Lin Bacon v. Susan Bland
Bacon.
104,532Patriot Fuels & Investments, Inc. an
Oklahoma corporation v. Okemah
Construction, Inc., an Oklahoma corporation.
Vol. 78 — No. 20 — 7/28/2007
Thursday, July 19, 2007
99,970Jennifer Anne Kerby v. Robert Christopher Kerby.
101,228Jennifer Ann Kerby v. Robert Christopher Kerby.
101,650Joy Neumann, surviving spouse of
Robert Neumann, deceased v. D.L.
Arrowsmith, D.O., Radiological Services, Inc., and Jane Phillips Medical
Center.
102,128Lori Harvell, individually and on
behalf of herself and all others similarly situated v. The Goodyear Tire &
Rubber Company.
102,580Craig E. Dunkin v. Instaff Personnel,
American Home Assurance Company and The Workers’ Compensation
Court.
102,675In the Matter of the Estate of Leldon
J. Miller, Deceased. Gela Peterson,
Hal Sliger, Lisa Groves, v. Billy C.
Newport and The Masonic Charity
Foundation of Oklahoma.
102,763Betsy M. Hart, Personal Representative of the Estate of Michael R. Hart,
Deceased and Sharp Mortgage Company, a Limited Partnership, Mortgage v. Winfield Investments, LLC.
102,801Claire Henrietta Toma, in her capacity as settlor and trustee of the Claire
Henrietta Toma Revocable Trust u/a
dtd 12-30-03 v. Timothy N. Toma, in
his individual capacity and in his
capacity as Ancillary Administrator
of the Estate of Margaret E. Meszaros,
Deceased.
102,973Mark Bilbrey, individually and as
representative of a class of all those
similarly situated v. Cingular Wireless, LLC.
103,033In Re: the Marriage of Kelley Anne
Norrod, now Deceased v. Dennis
Robert Norrod, Charles M. and Toni
Laws.
103,046State of Oklahoma v. Aaron Michael
Thompson and Affordable Bail Bonds,
Inc., and Roberta Dampf-Aguilar.
1871
103,182In the Matter of the Death of Louis
Reeder: Zinc Corporation of America
and Ace American Insurance Company v. Naomi Reeder and The Workers’ Compensation Court.
104,083Sun ‘N Fun Family Recreation, Inc.,
Bill Rutz and Betty Rutz v. Sun ‘N
Fun Waterpark, LLC, Ron Behar and
Danielle Behar v. Eastman National
Bank.
103,229Bloom Electric Service and National American Insurance Company v.
Rudolph A. Krivanek and The Worker’s Compensation Court.
104,150John Paul Betzer v. Julie Kae Betzer.
103,317The First Bank of Keyes v. Betty J.
Daniel, Trustee of the Betty J. Daniel
Loving Trust dated January 24, 1989
and Stephen M. Wingert and Rhoda
L. Wingert, husband and wife; United
States of America acting through The
Farmers Home Administration and
United States Department of Agriculture.
103,344Jerry Miller v. Dahl Heart and Air,
Compsource Oklahoma and The
Workers’ Compenation Court.
103,435Natchalita Cavazos v. API Enterprises, Inc., National Union Fire Insurance Company and The Worker’s
Compensation Court.
103,459R.I.C. Leasing, Inc., an Oklahoma
Corporation; and Waco of Oklahoma, Inc., an Oklahoma corporation v.
Interstate Fire & Casualty Company,
a Foreign Insurer.
103,540Laura Nguyen v. Thang P. Nguyen.
103,647Sanford Poorboy v. Cherokee Architectural Metals, LLC, American
Home Assurance Company and The
Worker’s Compensation Court.
103,840In the Matter of the Guardianship
of Danny Holly, a partially incapacitated adult, Russell L. Mullinix Attorney, Sally Ketchum Edwards, Attorney, and John B. Nicks, Attorney v.
Robert B. Sartin, Attorney, Adam K.
Marshall, Attorney, Robyn Owens,
Attorneys, and Timothy E. Houchin,
Special Guardian.
104,002Panhandle Producers and Royalty
Owners Association; Cambridge Producers, LTD and Thomas R. Cambridge v. Oklahoma Tax Commission;
Thomas E. Kemp, Jr., Jerry B. Johnson
and Constance Irby, Tax Commissioners all in their offical capacities.
1872
104,182Kindred Healthcare, Inc., a Delaware
corporation, formerly known as Vencor, Inc. v. Paul A. Roll, an individual;
the Paul A. Roll Trust, u/a/d June
22nd, 1987; Wilma N. Roll, an individual; the Wilma N Roll Trust u/a/d
June 22nd, 1987; Bartlesville Nursing Home Partnership, an Oklahoma
general partnership, Heritage Health
Care, Inc., an Oklahoma corporation
and KBC Bank N.V., a Belgian bank as
successor to Kredietbank, N.V., and
each of their successors and assigns.
104,198Dorothy L. Byrd v. Norman Regional Hospital Authority, a public trust
hospital and political subdivision of
the State of Oklahoma.
104,299Shane Roger Jones v. Robin Michelle
Jones.
104,494Jane A. Wofford v. Floyd R. Hogner.
104,503Lynda L. Martin v. Vern W. Martin.
104,540Don Jackson and Elva Jackson v.
Greyhound Lines, Inc., a foreign corporation and Gerald Keller and Leah
Keller, husband and wife.
104,566Stephen Handy v. City of Lawton and
Own Risk.
104,581In re marriage of: Cynthia K. Barksdale (now Ferguson) v. Gary L. Barksdale.
104,597Dick J. Rohla, an individual v. First
National Bank, Seiling, a nationally
chartered bank.
104,609Bradley V. Ham v. Tracy D. Ham
104,678Robert Rogers, individually, and on
behalf of all others similarly situated
in Oklahoma v. America’s Car-Mart,
Inc., an Arkansas corporation, et al.
COURT OF CRIMINAL APPEALS
D-2004-1010
Andrew v. State of Oklahoma.
Vol. 78 — No. 20 — 7/28/2007
Wednesday, July 11, 2007
F-2006-394
Norris v. State of Oklahoma.
COURT OF CIVIL APPEALS
101,877Bill Bowen and Mary Jo Bowen, husband and wife v. Billy Jack Tucker,
Gary Joe Tucker, Donna Sue Tucker,
Charlie F. Tucker and Sandra Delores
Tucker.
102,837Jerry Lee Killman v. The Stephens
Company, Twin City Fire Insurance
and The Workers’ Compensation
Court.
102,940Jackie Linn Bley v. Robert Lee Bley.
102,984Bob Darby and Carol Darby v. City of
Tulsa.
103,020First Call Medical, Inc., dba First Call
fka Carestaf of Oklahoma Inc., dba
Carestaf v. Irma Ruppell, et al.
103,037Shogun OKC, LLC dba Shogun Steakhouse of Japan v. Shogun, Inc., and
Yong D. Lee dba Shogun Japanese
Restaurant.
103,179Betty Ruth Paulsen v. Harry Christian
Paulsen.
103,673John B. Wadsworth and Deborah L.
Wadsworth, husband and wife v.
Chesapeake Operating, Inc., et al.
103,728City of Stillwater, a municipal corporation v. Scott C. Oliver and The
Workers’ Compensation Court.
103,941Articshield and Hanover Insurance
Company v. James David Pye and
The Workers’ Compensation Court.
103,975John Poole v. Goodyear Tire & Rubber
Company, Own Risk #14760 and The
Workers’ Compensation Court.
103,979Eddie Whitfield v. Gary Nugent.
104,006AMS Staff Leasing, Inc. & Dallas
National Insurance Company v.
David A. Barckholz and The Workers’ Compensation Court.
104,009Dallas E. Curling, III v. City Chevrolet, Travelers Indemnity Company of
America and The Workers’ Compensation Court.
104,094Regina G. McBride and Larry W.
McBride, individually and as husband and wife v. Bradford Lee Boone,
M.D., individually, Eastern Oklahoma
Orthopedic Center, Inc., an Oklahoma
Corporation and Robert C. Blankenship, M.D. individually.
103,253State of Oklahoma, ex rel., Department of Human Services v. Carl R.
Peterson.
104,176Keystone Equipment, Inc., and Old
Republic Insurance Company v. Sandra Kay Sinor, and The Workers’
Compensation Court.
103,350Tammy Faye Marsh now O’Dell v.
Mark Lynn Marsh.
104,180John H. Hinds and Rosa Lee Hinds v.
Marshall Johnston, Jr., and Estate of
Flora Johnston, Deceased.
103,432In Re the Marriage of: Donald G.
Woodard v. Beverly R. Woodard.
103,462John Paul Hemminger v. Gulen Dinc
Hemminger.
103,552Linda K. Brown v. Charles H. Brown.
103,634John K. Fields and Donna Fields, husband and wife v. Mildred M. Clarke, if
living, and if dead, then her unknown
heirs, successors and assigns, immediate and remote, Jack Leroy Smith,
s/p/a Jack L. Smith and Cheryl Kay
Smith, husband and wife; and Grand
Federal Savings Bank, now Grand
Savings Bank.
Vol. 78 — No. 20 — 7/28/2007
104,424Karen S. Darr v. Health Ryan Selcer
and the Town of Wellston, Oklahoma.
104,451Robert R. Cloar v. Gary Richardson
and Charles Richardson.
102,537In Re The Marriage of Diane M. Beesley v. Gregory D. Beesley.
102,659The State of Oklahoma v. Clyde E.
Lafferty, Jr. and Sam Goad, Bondsmen
and Robert Michael Legleu.
103,086John Ellis v. Calvin Leon James, individually and Blue Bell Creameries,
1873
Inc., a Delaware Corporation in good
standing and doing business in the
State of Oklahoma.
103,679Duncan Regional Hospital, Own Risk
#75175 v. Cynthia Chambliss and The
Workers’ Compensation.
103,375In the Matter of C.W., alleged
deprived child. Rialyn Vardeman and
Sam Washburn v. State of Oklahoma.
103,733Susan Ivy Clark and Pattie Rodgers v.
New Directions, Inc.
103,498Portia McClellan v. William Wilber.
103,591Jim Walter Homes, Inc. v. Robin K.
Lee and Mistie D. Lee, husband and
wife.
103,692Rosewood Industries and Credit General Insurance Company/OPCIGA v.
Tina Camel and the Workers’ Compensation Court.
104,014Shangri La Resort, LLC v. Breakers,
LLC and Pointe Main, LLC.
104,283Dilworth Development Company,
Inc., v. Board of County Commissioners of the County of Kay, Oklahoma.
102,291In Re The Marriage of Christopher
Glenn George, II v. Andrea Nichole
George, Debra Lira.
102,543Raper Trucking, LLC v. Phil Clifton
dba The Auction Company.
102,558Jennifer Hurst, now Nooner v. Bryan
Hurst.
102,641Johnny Walker v. Ryan Paul Fontenot.
103,007Kendall Wayne Southern v. Carrie
Jane Armstrong Southern.
103,117Melvin J. Duvaul and Stacy G. Duvaul
v. Charles Russell aka Charles Russell, Jr.; Geraldean Russell aka Geraldine Russell; Charles Jeffrey Russell;
Marcinda Russell; James U. Collins,
Sr.; Frances Collins Moore, as Trustee
of Trust Agreement dated March 5,
1973.
103,279Terry Don Lucas v. Deborah Lynn
Lucas.
103,746United Parcel Service and Liberty
Mutual Insurance Company v. Bill W.
Shans and The Workers’ Compensation Court.
103,774Teresa Erin Spencer, an individual v.
City of Bristow, a political subdivison
of the State of Oklahoma.
103,801In the Matter of D.LS. and S.S., juveniles. Irene Smith v. Department of
Human Services.
103,988Alfred Sawatzky v. Alnita Sawatzky.
103,991Shannon O’ Brian Skaggs and Erica
Skaggs V. Brian Scott Davis, Christopher John Harlien, The City of Enid,
Oklahoma, and Johnny Hindmand
dba Del City Cycle Shop.
104,102In the Matter of A.R., a deprived
child. Niki Rodriquez v. State of Oklahoma.
104,123Manpower and Insurance Company
of the State of Pennsylvania v. Mary
A. Rinehart and The Workers’ Compensation Court.
104,153Rex McCracken and Becky McCracken v. Tom Carr and dba Carr Pools
and Spas and Carr Pools & Spas,
LLC.
104,181Discover Bank (Discover Card) by
SA Discover Fin. Serv., LLC v. James
Gardner.
104,259Johnnie L. Cowan v. Covalence Plastis, Arch Insurance Company, Insurance Carrier and The Workers’ Compensation Court.
104,339Mastercraft Floor Covering v. The
Sullivan Source, Inc., and TRG-Hallandale Beach (Tower One) Limited.
103,280Bonnie J. Dennis v. Wendell E. Drake.
103,481Sonny Lauren Harmon v. Glynn
Booher, Warden JLCC, ODOC, ex rel.,
State of Oklahoma.
1874
Vol. 78 — No. 20 — 7/28/2007
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More details on the nomination
process at www.okbar.org
Vol. 78 — No. 20 — 7/28/2007
ebastille.com
1875
Disposition of Cases
Other Than by Published Opinion
COURT OF CRIMINAL APPEALS
SUMMARY OPINIONS
RE 2006-0613 — Appellant, Redrick Harvey
Parker, Jr., pled no contest August 8, 2002, in
Marshall County District Court Case No. CF2001-229 to Count 1 — Burglary in the Second
Degree, Count 2 — Possession of Firearms
After Conviction, Count 3 — Possession of
Police Scanner While in Commission of Felony,
Count 4 — Attempted Escape from Arrest or
Detention and Count 5 — Knowingly Concealing Stolen Property. He pled guilty August 8,
2002, in Marshall County District Court Case
No. CF-2002-21 to Escape From County Jail.
Appellant was sentenced to twenty years on
each count with all time suspended except for
the first five years, with rules and conditions of
probation. The sentences were ordered to run
concurrently. On February 10, 2006, the State
filed a motion to revoke Appellant’s suspended sentences. Following a revocation hearing
May 23, 2006, the Honorable Richard A. Miller,
Associate District Judge, revoked fifteen years
on each count. Appellant appeals from the
revocation of his suspended sentences. The
revocation of Appellant’s suspended sentences is AFFIRMED. Lumpkin, P.J., concurs; C.
Johnson, V.P.J., concurs; Chapel, J., concurs;
A. Johnson, J., concurs; Lewis, J., concurs.
F 2006-0588 — Appellant, Gregory Wayne
Thomas, pled guilty June 24, 2005, in the District Court of Bryan County, Case No. CF-2004349, to Count 1 — Manufacture of CDS and
Count 2 — Possession of Firearm While Committing Felony. He was sentenced to five years,
suspended, upon completion of Drug Court.
If unsuccessful in Drug Court, the sentence
would be ten years on each count, with two
years suspended. On March 21, 2006, the State
filed an application to remove Appellant from
the Drug Court program. Following a hearing
on May 2 and May 16, 2006, the Honorable
Mark R. Campbell, District Judge, terminated Appellant from the Drug Court program.
Appellant was sentenced to ten years imprisonment, with the last two years suspended
and credit for time served. Appellant appeals
from the Drug Court termination order. The
termination from Drug Court in the District
Court of Bryan County, District Court Case
1876
No. CF-2004-349, is AFFIRMED. Lumpkin, P.J.,
concurs; C. Johnson, V.P.J., concurs; Chapel,
J., concurs; A. Johnson, J., concurs; Lewis, J.,
concurs.
RE-2006-931 — Larry James, Appellant,
entered a plea of Attempted Possession of a
Controlled Dangerous Substance — Crack, in
Case No. CF-2001-5652 in the District Court
of Oklahoma County. Appellant was sentenced to five (5) years, all suspended. On
August 21, 2006, Appellant’s suspended sentence was revoked in full. From this judgment
and sentence, Appellant appeals. Appellant’s
judgment and sentence is AFFIRMED. Lumpkin, P.J., concurs; C. Johnson, V.P.J., concurs;
Chapel, J., concurs; A. Johnson, J., concurs;
Lewis, J., concurs.
F-2006-506 — Gregory Allen Polite, Appellant, was tried by jury for the crime of First
Degree Rape, After Conviction of Forcible
Sodomy in Case No. CF-2005-2885 in the District Court of Tulsa County. The jury returned
a verdict of guilty and recommended as
punishment life imprisonment without possibility of parole. The trial court sentenced
accordingly. From this judgment and sentence Gregory Allen Polite has perfected his
appeal. AFFIRMED. Opinion by C. Johnson,
V.P.J.; Lumpkin, P.J., concurs; Chapel, J.,
specially concurs; A. Johnson, J., concurs;
Lewis, J., concurs.
F-2006-560 — Stephen Chancellor, Appellant, entered a guilty plea to two counts of Distribution of a Controlled Dangerous Substance
in Case No. CF-2005-34 in the District Court of
Delaware County. Appellant’s sentencing was
deferred and he was ordered to attend Drug
Court. On December 7, 2005, Appellant was
terminated from Drug Court and sentenced to
twenty (20) years for each count, the sentences
to be served concurrently. From this judgment
and sentence, Appellant appeals. Appellant’s
judgment and sentence is AFFIRMED. Lumpkin, P.J., concurs; C. Johnson, V.P.J., concurs;
Lewis, J., concurs.
F-2006-645 — Tyrone Ladale Haney, Appellant, appealed to this Court from the accel-
Vol. 78 — No. 20 — 7/28/2007
eration of his deferred judgment and sentencing, entered by the Honorable Gary L. Brock,
Special Judge, in Case No. CF-2002-229 in the
District Court of McCurtain County. DENIED.
Lumpkin, P.J., concurs; C. Johnson, V.P.J.,
concurs; Chapel, J., concurs; A. Johnson, J.,
concurs; and Lewis, J., concurs.
C-2006-649 — Robert Earl Richardson, Petitioner, pled guilty to the crime of Shooting with
Intent to Kill in Case No. CF-2001-80 in the
District Court of Jefferson County. The Honorable George W. Lindley accepted the plea and
sentenced him to 20 years imprisonment and a
$2,000 fine. Richardson timely requested that
he be allowed to withdraw his guilty plea. His
motion was not heard until four years later
after this Court granted a Writ of Mandamus
and ordered the district court to hold the
hearing. The Honorable Joe H. Enos heard the
motion and denied it on March 21, 2006. Richardson seeks review of that denial by petitioning this Court for certiorari. The Petition for
Writ of Certiorari is GRANTED. The Judgment
and Sentence of the district court is VACATED
and the matter is REMANDED to the district
court with instructions to allow Richardson to
withdraw his plea and proceed to trial. Opinion by A. Johnson, J.; Lumpkin, P.J., dissents;
C. Johnson, V.P.J., concurs; Chapel, J., concurs;
Lewis, J., concurs.
F-2006-722 — Charles Jackson Bowes, Appellant, was tried by jury for the crimes of First
Degree Burglary (Count I), Second Degree
Rape by Instrumentation (Count II), and Sexual
Battery (Count III) in Case No. CF-2005-459, in
the District Court of Ottawa County. The jury
returned a verdict of guilty on Count II, Second
Degree Rape, and recommended as punishment five (5) years imprisonment. Bowes was
acquitted on Counts I and III. The trial court
sentenced accordingly. From this judgment and
sentence Charles Jackson Bowes has perfected
his appeal. AFFIRMED. Opinion by Chapel,
J.; Lumpkin, P.J., concur; C. Johnson, V.P.J.,
concur; A. Johnson, J., concur; Lewis, J.,
concur.
Monday, June 25, 2007
RE-2006-520 — J.B. Brooks, Appellant, pled
guilty to Count 1, Pointing a Firearm at Another; Count 2, Possession of a Controlled Dangerous Substance (Marijuana); and Count 3,
Domestic Abuse (Assault and Battery) in Case
Vol. 78 — No. 20 — 7/28/2007
No. CF-2002-4686 in the District Court of
Oklahoma County. Appellant was sentenced
to seven (7) years for Count 1, and one (1)
year each for Counts 2 and 3, all sentences
suspended. On December 9, 2003, Appellant
was charged with Assault and Battery with
Intent to Kill in Case No. CF-2003-6692 in the
District Court of Oklahoma County. Appellant
pled guilty to the charge in Case No. CF-20036692 and was sentenced to ten (10) years with
all but the first year suspended. On April 26,
2006, Appellant’s suspended sentences were
revoked in full. From this judgment and sentence, Appellant appeals. Appellant’s judgment and sentence is AFFIRMED. Lumpkin,
P.J., concurs; C. Johnson, V.P.J., concurs; Chapel, J., concurs; A. Johnson, J., concurs; Lewis,
J., concurs.
RE 2006-0897 — Appellant, Ross J. Spotwood, pled guilty February 1, 2005, in the
District Court of Tulsa County, Case No. CF2005-112, to Count 1 — Assault and Battery
Upon a Police Officer, Count 2 — Petit Larceny,
Counts 3 and 4 — Assault and Battery and
Count 5 — Public Drunk. He was given a three
year sentence on Count 1, ninety days in the
County Jail on Counts 2, 3 and 4, and thirty
days in the County Jail on Count 5. All sentences were suspended and the sentences were
ordered to run concurrently. On July 24, 2006,
the State filed an application to revoke Appellant’s suspended sentence. Following a revocation hearing before the Honorable Thomas
C. Gillert, District Judge, on August 15, 2006,
Appellant’s suspended sentence was revoked
in full. Appellant appeals from the revocation
of his suspended sentence. The revocation of
Appellant’s suspended sentence in the District
Court of Tulsa County, District Court Case
No. CF-2005-112, is AFFIRMED. Lumpkin, P.J.,
concurs.
RE 2006-0935 — Appellant, Billy Joe Young,
pled guilty October 18, 2002, in the District
Court of Adair County, Case No. CF-2002-190,
to Larceny of an Automobile. He was sentenced
to twelve years with all except the first seven
years suspended. The State filed an application
to revoke Appellant’s suspended sentence on
July 24, 2006. Following a revocation hearing
before the Honorable L. Elizabeth Brown, Associate District Judge, on August 17, 2006, the
remaining five years of Appellant’s suspended
sentence was revoked. Appellant appeals from
1877
the revocation of his suspended sentence. The
revocation of Appellant’s suspended sentence
in the District Court of Adair County, District
Court Case No. CF-2002-190, is AFFIRMED.
concurs; Lewis, J., concurs.
RE-2006-795 — Appellant, Richard Todd
Heffelman, entered a plea of nolo contendere
in Pottawatomie County District Court, Case
No. CF-2000-295, to Assault with a Dangerous
Weapon. Appellant was sentenced to five (5)
years’ incarceration, pursuant to terms and
conditions of probation. Subsequently, Appellant’s suspended sentence was revoked in full.
Appellant appeals the order of the Honorable
Douglas L. Combs, District Judge, Oklahoma
County District Court. The order of revocation is AFFIRMED. Lumpkin, P.J., concurs; C.
Johnson, V.P.J., concurs; Chapel, J., concurs; A.
Johnson, J., concurs; Lewis, J., concurs.
Tuesday, June 26, 2007
RE 2006-0894 — Appellant, Deangelo Dinita
Hurd, pled guilty April 4, 2000, to Unlawful
Possession of Cocaine in the District Court of
Comanche County, Case No. CF-2000-19. He
was sentenced to ten years with five years to
serve and five years suspended, with rules
and conditions of probation. The State filed an
application to revoke Appellant’s suspended
sentence on May 25, 2006. Following a revocation hearing August 15, 2006, before the Honorable Gerald F. Neuwirth, District Judge, the
remaining five years of Appellant’s suspended
sentence was revoked. Appellant appeals from
the revocation of his suspended sentence. The
revocation of Appellant’s suspended sentence
in the District Court of Comanche County, District Court Case No. CF-2000-19, is AFFIRMED.
concurs; Lewis, J., recused.
RE 2006-0808 — Appellant, Hazel M. Covey,
pled guilty October 5, 2005, to Uttering Two or
More Bogus checks Exceeding $500.00, After
Former Conviction. She was sentenced to five
years, all suspended, a $100.00 fine, costs and
fees. She was also ordered to pay $28,363.09
in restitution. On February 15, 2006, the State
filed a motion to revoke Appellant’s suspended
sentence. Following a revocation hearing May
31, 2006, before the Honorable Rocky L. Powers, District Judge, three years of Appellant’s
suspended sentence was revoked. Appellant
1878
appeals from the revocation of her suspended
sentence. The revocation of Appellant’s suspended sentence in the District Court of Bryan
County, District Court Case No. CF-2003-653,
is REVERSED AND REMANDED FOR A NEW
HEARING. Lumpkin, P.J., concurs; C. Johnson,
V.P.J., concurs; Chapel, J., concurs; A. Johnson,
J., concurs; Lewis, J., concurs.
C-2005-1 — Victor Alfonso Duenas-Flores,
Petitioner, entered a blind plea of guilty to the
crime of first-degree manslaughter in Case No.
CF-2003-52 in the District Court of Blaine County. The Honorable Ronald Franklin accepted
his plea and sentenced him to 45 years imprisonment. Duenas-Flores timely moved to withdraw his plea and the district court denied that
motion. Victor Alfonso Duenas-Flores seeks
review of that denial by petitioning this Court
for certiorari. The Petition for Writ of Certiorari is GRANTED. The judgment and sentence is VACATED. This case is REMANDED
with directions that Duenas-Flores be permitted to withdraw his guilty plea and that
the district court conduct further proceedings
consistent with this opinion. Opinion by A.
Johnson, J.; Lumpkin, P.J., dissents; C. Johnson,
V.P.J., concurs; Chapel, J., concurs; Lewis, J.,
concurs.
F-2006-132 — Tashiro Rudy Tillman, Appellant, was tried by jury for the crimes of Unlawful Possession of a Controlled Drug, After
Former Conviction of Two Felonies (Count
1) and Obstructing an Officer (Count 2) in
of Tulsa County. The jury returned a verdict
of guilty and recommended as punishment 20
years imprisonment on Count 1 and 3 months
imprisonment on Count 2. The trial court sentenced accordingly. From this judgment and
sentence Tashiro Rudy Tillman has perfected
his appeal. The Judgment and Sentence of
the District Court is AFFIRMED. The case is
REMANDED for correction of the Judgment
and Sentence document through an order
nunc pro tunc to reflect that Tillman’s conviction in Count 1 was enhanced with only the
two prior convictions in Tulsa County Case
Nos. CF-2000-1842 and CF-98-5970, and that
his prior conviction in Tulsa County Case No.
CF-98-5970 was for possession of a controlled
dangerous drug rather than possession with
intent to distribute. Opinion by A. Johnson, J.;
Vol. 78 — No. 20 — 7/28/2007
Lumpkin, P.J., concurs; C. Johnson, V.P.J., concurs; Chapel, J., concurs; Lewis, J., concurs.
RE-2006-885 — Erik Rey Garcia, Appellant, entered a plea of guilty in Oklahoma
County District Court, Case No. CF-20023863, to Assault and Battery with a Dangerous
Weapon, Count I, and Obstructing an Officer,
Count II. Appellant was sentenced to five (5)
years’ incarceration on Count I, and one (1)
year incarceration on Count II. All but three
(3) years was suspended on Count I. The sentences were ordered to be served concurrently.
Subsequently, Appellant’s suspended sentence
was revoked. Appellant appeals the order of
the Honorable Susan P. Caswell, District Judge,
Oklahoma County District Court. The order
of revocation is AFFIRMED. Lumpkin, P.J.,
concurs.
F-2006-991 — Charles Causey, Appellant,
was tried by jury for the crime of Lewd Molestation in Case No. CF-2004-383, in the District
Court of McCurtain County. The jury returned
a verdict of guilty and recommended as punishment fifteen (15) years imprisonment. The
trial court sentenced accordingly. From this
judgment and sentence Charles Causey has
perfected his appeal. The Judgment and Sentence of the District Court is REVERSED and
REMANDED. Opinion by Chapel, J.; Lumpkin,
P.J., concur in results; C. Johnson, V.P.J., concur;
A. Johnson, J., concur; Lewis, J., concur.
F-2006-887 — Timmy Dean Fortune, Appellant, was tried by jury for the crime of First
Degree Rape in Case No. CF-2005-438, in the
District Court of Garfield County. The jury
returned a verdict of guilty and recommended
as punishment thirty (30) years imprisonment.
The trial court sentenced accordingly. From
this judgment and sentence Timmy Dean Fortune has perfected his appeal. AFFIRMED.
Opinion by Chapel, J.; Lumpkin, P.J., concur; C. Johnson, V.P.J., concur; A. Johnson, J.,
concur; Lewis, J., concur.
RE-2006-689 — Darius Maxville, Appellant,
entered a plea of guilty in Tulsa County District Court, Case No. CF-2005-129, to Burglary
in the First Degree. Appellant was sentenced
to ten (10) years’ incarceration, all suspended,
pursuant to terms and conditions of probation.
Subsequently, Appellant’s suspended sentence
was revoked in full. Appellant appeals the
order of the Honorable P. Thomas Thornbrugh,
Vol. 78 — No. 20 — 7/28/2007
District Judge, Tulsa County District Court.
The order of revocation is AFFIRMED. Lumpkin, P.J., concurs; C. Johnson, V.P.J., concurs;
Lewis, J., concurs.
F-2005-716 — Appellant Steven Lynn Smith
was tried by jury and convicted of Indecent
or Lewd Acts with Child Under Sixteen, After
Former Conviction of A Felony, Case No. CF2004-4179, in the District Court of Oklahoma
County. The jury recommended as punishment
life in prison without the possibility of parole
and the trial court sentenced accordingly. It is
from this judgment and sentence that Appellant appeals. The Judgment and Sentence is
REVERSED AND REMANDED FOR A NEW
TRIAL. Opinion by Lumpkin, P.J.; C. Johnson,
V.P.J., concur in results; Chapel, J., concur in
results; A. Johnson, J., concur; Lewis, J., concur
in results.
F-2006-239 — Henry Broades, Appellant,
was tried by jury in the District Court of
Oklahoma County. In Case No. CF-2002-2306,
he was found guilty of Count 1, lewd acts
with a child under sixteen (16), in violation
of 21 O.S.2001, §§1123; Count 2, rape in the
first degree by instrumentation, in violation
of 21 O.S.2001, §§1111 and 1114; and Count
3, burglary in the first degree, in violation of
21 O.S.2001, §1431, after two (2) prior felony
convictions. In Case No. CF-2002-2307, the
jury found Broades guilty of Count 1, rape in
the first degree; Count 2, burglary in the first
degree; and Count 3, rape in the first degree
by instrumentation, after two (2) prior felony
convictions. The jury sentenced Appellant to
twenty (20) years imprisonment in each count.
The Honorable Jerry D. Bass, District Judge,
pronounced judgment and sentence, ordering
the terms served consecutively. The trial court
sentenced accordingly. From this judgment
and sentence Henry Broades has perfected
his appeal. AFFIRMED. Opinion by Lewis, J.;
Lumpkin, P.J., concurs in results; C. Johnson,
V.P.J., concurs in results; Chapel, J., concurs in
results; A. Johnson, J., concurs in results.
Friday, July 6, 2007
F-2006-793 — Joseph Lee Pinkston, Appellant, was tried by jury for the crime of Possession of a Controlled Substance (Methamphetamine) after former conviction of a felony
1879
in Case No. CF-2005-236 in the District Court
of Pottawatomie County. The jury returned a
verdict of guilty and recommended as punishment 12 years imprisonment. The trial court
and sentence Joseph Lee Pinkston has perfected his appeal. The Judgment and Sentence
of the District Court is AFFIRMED. Opinion by
A. Johnson, J.; Lumpkin, P.J., concurs in results;
Lewis, J., concurs.
F-2006-855 — Terrence Alden Ryan, Appellant, was tried by jury for the crime of Robbery
with Firearms in Case No. CF-2005-6227 in the
District Court of Oklahoma County. The jury
returned a verdict of guilty and recommended as punishment five years imprisonment.
this judgment and sentence Terrence Alden
Ryan has perfected his appeal. AFFIRMED.
Opinion by C. Johnson, V.P.J.; Lumpkin, P.J.,
F-2006-625 — Sandra Kay Thompson, Appellant, was tried by jury in Case No. CF-20051668 in the District Court of Oklahoma County,
for the crimes of: Count I, Possession of a
Controlled Dangerous Substance (Methamphetamine) with Intent to Distribute; Count
II, Felonious Possession of a Firearm; Count
IV, Furnishing a Weapon to a Minor; Count V,
Maintaining a Dwelling Where a Controlled
dangerous Substance is kept; Count VI, Possession of Proceeds Derived for Violation of
the Uniform Controlled Dangerous Substance
Act; Count VII, Possession of a Controlled
Dangerous Substance (Marijuana); and Count
VIII, Possession of Drug Paraphernalia. Counts
I, II, V, VI and VII were charged After Former
Conviction of Two or More Felonies. The jury
found Appellant guilty on Counts I, VI, VII
and VIII and assessed punishment as follows:
twenty-four years imprisonment on Count I;
five years imprisonment on Count VI; four
years imprisonment on Count VII; and six
months in the county jail on Count VIII. At sentencing, the trial court imposed judgment and
sentence in accordance with the jury’s verdict
ordering her sentences on Counts I and VII to
run consecutively with each other and concurrently with the remaining counts. From this
judgment and sentence Sandra Kay Thompson
has perfected her appeal. AFFIRMED. Opinion
by C. Johnson, V.P.J.; Lumpkin, P.J., concurs;
1880
Lewis, J., concurs.
F-2006-620 — Samuel William James, Appellant, was tried by jury for the crime of Robbery With Firearms, After Former Conviction
of Two Felonies in Case No. CF-2005-3720 in
the District Court of Tulsa County. The jury
returned a verdict of guilty and recommended
as punishment twenty years imprisonment
and a $10,000 fine. The trial court sentenced
accordingly. From this judgment and sentence
Samuel William James has perfected his appeal.
AFFIRMED. Opinion by C. Johnson, V.P.J.;
Lumpkin, P.J., concurs; Chapel, J., concurs; A.
Johnson, J., concurs; Lewis, J., concurs.
C-2006-1014 — Aric Wayne Smith, Petitioner,
entered a negotiated plea in Tulsa County District Court, Case No. CF-2005-604, to Count 1:
Assault and Battery with a Dangerous Weapon
and Count 2: Attempted Larceny of Merchandise from a Retailer. Pursuant to the agreement,
the State dismissed five of the six prior felony
convictions alleged for sentence-enhancement
purposes; the district court sentenced Petitioner to fifteen years on each count, with the
sentences to run concurrently with each other
and concurrently with a five-year sentence in a
prior case. Thereafter, Petitioner filed a motion
to withdraw his plea, which the district court
denied. This Court granted Petitioner an outof-time certiorari appeal on September 13, 2006.
The Petition for Writ of Certiorari is DENIED,
and the Judgment and Sentence of the trial
court is AFFIRMED. Opinion by C. Johnson,
V.P.J.; Lumpkin, P.J., concurs; Chapel, J., concurs; A. Johnson, J., concurs; Lewis, J., concurs
in results.
F-2006-365 — David Wayne Friday, Appellant, was tried by jury and found guilty of
Count I, uttering a forged instrument, in violation of 21 O.S. 2001, §1592, Count II, displaying
a counterfeit driver’s license, in violation of 47
O.S. Supp. 2004, §6-301(2)(b), and Count III, a
misdemeanor, obstructing an officer, in violation of 21 O.S. 2001, §540, after two or more
prior felony convictions, in Tulsa County District Court, Case No. CF-2005-3757. The jury
sentenced Appellant to fifteen (15) years and
a $3,500 fine for Count I, fifteen (15) years and
a $3,500 fine for Count II, and six (6) months
in the county jail and a $500 fine for Count
III. The Honorable P. Thomas Thornbrugh,
District Judge, pronounced judgment and sen-
Vol. 78 — No. 20 — 7/28/2007
tence accordingly, ordering the terms served
consecutively with no credit for time served.
this judgment and sentence David Wayne
Friday has perfected his appeal. AFFIRMED.
Opinion by Lewis, J.; Lumpkin, P.J., concurs;
A. Johnson, J., concurs in results.
F-2006-688 —Jon Zachariah Larson was tried
by jury and convicted of Feloniously Pointing a Firearm, in violation of 21 O.S. 2001,
§1289.16, in the District Court of Washita
County, Case Number CF-2005–90. The
jury recommended as punishment two (2)
years imprisonment, and the trial court sentenced accordingly. AFFIRMED. Opinion by
Lumpkin, P.J.; C. Johnson, V.P.J., concur;
Chapel, J., concur; A. Johnson, J., concur; Lewis,
J., concur.
F-2006-255 — Appellant, James Thomas Dhalluin, was tried by jury in the District Court of
Custer County, Case Number CF-2005-217,
and convicted of Driving Under the Influence
of Alcohol (Count I) and Driving with License
Revoked (Count II). The jury set punishment
at six (6) years imprisonment and a $1,000.00
fine on Count I and a $750.00 fine on Count
II. The trial judge sentenced Appellant accordingly, meanwhile assessing certain fines and
costs. Appellant now appeals his convictions
and sentences. AFFIRMED. Opinion by Lumpkin, P.J.; C. Johnson, V.P.J.; concur; Chapel, J.,
concur in result; A. Johnson, J., concur; Lewis,
J., concur.
F-2006-434 — Appellant, Joshua Edward
Doyle Smith, was tried by jury in the District
Court of Okfuskee County, Case No. CF2004-70, and convicted of First Degree Felony
Murder. The jury set punishment at life imprisonment, and the trial judge sentenced Appellant accordingly. Appellant now appeals his
conviction and sentence. AFFIRMED. Opinion
by Lumpkin, P.J.; C. Johnson, V.P.J., concur in
result; Chapel, J., concur in result; A. Johnson,
J., concur; Lewis, J., concur.
F-2006-610 — Appellant Cordero Rosales
Sandoval was tried by jury on two counts of
First Degree Murder or in the alternative, two
counts of First Degree Felony Murder, in the
District Court of Tulsa County, Case No. CF2005-2347. The jury found Appellant guilty of
Vol. 78 — No. 20 — 7/28/2007
two counts of First Degree Felony Murder and
recommended as punishment life imprisonment and a $1,000.00 fine in each count. The
trial court sentenced accordingly, ordering
the sentences to run consecutively. It is from
these judgments and sentences that Appellant
appeals. AFFIRMED. Opinion by Lumpkin,
P.J.; C. Johnson, V.P.J., concur; Chapel, J., concur in result; A. Johnson, J., concur; Lewis, J.,
concur.
F-2006-628 — Appellant Gregory Paul Stephens was tried by jury and convicted of
Assault and Battery with a Dangerous Weapon,
(Count I) and Possession of Firearms (Count
II), both counts After Former Conviction of
Two or More Felonies, in the District Court of
Pottawatomie County, Case No. CF-2005-408.
The jury recommended as punishment twentyfive (25) years imprisonment in each count.
The trial court sentenced accordingly, ordering
P.J.; C. Johnson, V.P.J., concur; Chapel, J., concur in result; A. Johnson, J., concur; Lewis, J.,
concur.
Monday, July 16, 2007
RE-2006-963 — Appellant Michael Irwin
Hawkins entered a plea of guilty in Ottawa
County District Court, Case No. CF-2004236, to Assault and Battery with a Dangerous
Weapon. Appellant was sentenced to ten (10)
years’ incarceration, all suspended, pursuant
to terms and conditions of probation. Subsequently, Appellant’s suspended sentence was
revoked in full. Appellant appeals the order
of the Honorable Robert G. Haney, District
Judge, Ottawa County District Court. The
order of revocation is AFFIRMED. Lumpkin,
P.J., concurs; C. Johnson, V.P.J., concurs; Chapel, J., concurs; A. Johnson, J., concurs; Lewis,
J., concurs.
F-2006-343 — Eugene Bernard Rogers, Appellant, was tried by jury for the crime of Unlawful Possession of a Controlled Drug (Cocaine
Base), After Former Conviction of Two Felonies
in Case No. CF-2004-4843 in the District Court
of Tulsa County. The jury returned a verdict
of guilty and recommended as punishment
twenty years imprisonment and a $100 fine.
this judgment and sentence Eugene Bernard
1881
Rogers has perfected his appeal. AFFIRMED.
Opinion by C. Johnson, V.P.J.; Lumpkin, P.J.,
concurs; Lewis, J., concurs in results.
F-2006-1030 — Gregory Derral Rivers, Appellant, was convicted after a bench trial in Case
No. CF-2005-42 in the District Court of Okmulgee County, of the following offenses: Count 1,
Second Degree Burglary; Count 2, Knowingly
Concealing Stolen Property; Count 3, Attempting to Elude a Police Officer; and Count 4,
Possession of a Controlled Substance, all after
conviction of two or more felonies. The trial
court found Appellant guilty as charged on
all counts and imposed sentence as follows:
Count 1, twenty years imprisonment; Count 2,
ten years imprisonment; Count 3, thirty years
imprisonment; and Count 4, ten years imprisonment. The court ordered Counts 1 and 2 to
be served concurrently, but consecutively to
Counts 3 and 4, which were ordered to run
consecutively to each other as well. From this
judgment and sentence Gregory Derral Rivers
has perfected his appeal. AFFIRMED. Opinion
by C. Johnson, V.P.J.; Lumpkin, P.J., concurs;
Lewis, J., concurs.
M-2004-1237 — Joseph David Maples, Appellant, following a jury trial in the District Court
of Oklahoma County, Case No. CM-2001-2616,
was found guilty of misdemeanor Driving
a Motor Vehicle While Under the Influence
of Alcohol. On January 6, 2004, the Honorable Glenn M. Jones, Special Judge, sentenced
Appellant to ten (10) days in the county jail
and a fine of $500.00. Appellant appeals the
Judgment and Sentence. AFFIRMED. Opinion
by A. Johnson, J.; Lumpkin, P.J., concurs; C.
Johnson, V.P.J., concurs; Chapel, J., concurs;
Lewis, J., concurs in results.
F-2006-1195 — Appellant Jamie O’Dell Watts
was tried by jury and convicted of Trafficking
in Illegal Drugs (Cocaine base) in the District
Court of Kay County, Case No. CF-2005-745.
The jury recommended as punishment twenty
(20) years imprisonment and the trial court
sentenced accordingly. It is from this judgment and sentence that Appellant appeals.
AFFIRMED. Opinion by Lumpkin, P.J.; C.
Johnson, V.P.J., concur; Chapel, J., concur; A.
Johnson, J., concur; Lewis, J., concur.
C-07-54 — Juan Alberto Gutierrez, Appellant,
entered a nolo contendere plea to Trafficking in
Illegal Drugs (Count I), Possession of Mari1882
juana (Misdemeanor) (Count II), and Resisting
an Officer (Count III) in Case No. CF-06-882,
and Possession of a Controlled Drug (Count
I), Possession of Paraphernalia (Count II),
and Obstructing an Officer (Count III) in Case
No. CF-06-182, in the District Court of Tulsa
County. In Case No. CF-06-882, Gutierrez was
sentenced to life imprisonment on Count I, and
one (1) year imprisonment for each of Counts
II and III. In Case No. CF-06-182, ten (10) years
imprisonment on Count I, and one (1) year
imprisonment on each of Counts II and III.
The sentences in CF-06-182 runs concurrently
with the sentences in CF-06-882. Gutierrez
filed a Motion to Withdraw his plea, which
was denied after a hearing on January 4, 2007.
From this judgment and sentence Juan Alberto
Gutierrez has perfected his Petition for Writ of
Certiorari. The Petition for Writ of Certiorari is
DENIED. Opinion by Chapel, J.; Lumpkin, P.J.,
concur; C. Johnson, V.P.J., concur; A. Johnson,
J., concur; Lewis, J., concur in results.
F-2006-840 — Appellant, William Franklin
Laffoon, was tried by jury in the District Court
of Wagoner County, Case Number F-2006-840,
and convicted of Assault and Battery in the
Presence of a Child. The jury set punishment
at five (5) years imprisonment and a $4,000.00
fine. The trial judge sentenced Appellant in
accordance with the jury’s determination.
Appellant now appeals his conviction and sentence. AFFIRMED. Opinion by Lumpkin, P.J.;
C. Johnson, V.P.J., concur; Chapel, J., concur; A.
Johnson, J., concur; Lewis, J., concur in result.
F-2006-505 — Susie Ann Yahola, Appellant,
appealed to this Court from an order issued
by the Honorable B. Gordon Allen, Associate
District Judge, terminating her from the Drug
Court Program in Case No. CF-2005-2 in the
District Court of Hughes County. DENIED.
Lumpkin, P.J., concurs; C. Johnson, V.P.J., concurs; Chapel, J., concurs; A. Johnson, J., concurs; and Lewis, J., concurs.
2006-1088 — Dennis Lamont Kennedy,
entered Alford pleas to twenty (20) counts of
Unlawful Possession of Child Pornography,
21 O.S.2001, §1024.2 in the District Court of
Caddo County, Case No. CF-2005-348, before
the Honorable Richard G. Van Dyck, District
Judge. Judge Van Dyck sentenced Kennedy to
five (5) years on each count and ordered that
the sentences be served consecutively. The
trial court sentenced accordingly. From this
judgment and sentence Dennis Lamont Ken-
Vol. 78 — No. 20 — 7/28/2007
nedy has perfected his appeal. We hold that
the trial court did not abuse its discretion in
denying Petitioner’s motion to withdraw his
Alford plea, and we find no reason to grant
relief in this case. The trial court’s decision
to deny Petitioner motion to withdraw plea
is AFFIRMED and the Application for Writ
of Certiorari is DENIED. Opinion by Lewis,
J.; Lumpkin, P.J., concurs; C. Johnson, V.P.J.,
concurs; Chapel, J., concurs in part/dissents in
part; A. Johnson, J., concurs.
M-2006-419 — Douglas Shane Sanders,
Appellant, was tried by jury for the crimes of
Obstructing an Officer in the Performance of
his Official Duties and Driving While License
Under Suspension in Case No. CM-2005-46 in
the District Court of Oklahoma County. The
jury returned a verdict of guilty and recommended as punishment 90 days imprisonment
for the obstruction charge and fines of $500
each for the obstruction charge and driving
with a suspended license. The trial court sentenced accordingly. From this judgment and
sentence Douglas Shane Sanders has perfected
his appeal. The Judgment and Sentence of the
District Court is AFFIRMED. Opinion by A.
Johnson, J.; Lumpkin, P.J., concurs; C. Johnson,
concurs.
F-2005-1151 — Daniel Thomas Slape, Appellant, was tried in a non-jury proceeding for the
crime of Lewd or Indecent Acts with a Child in
Case No. CF-2005-185 in the District Court of
Pottawatomie County. The Honorable Douglas
L. Combs found Slape guilty and sentenced
him to 15 years imprisonment. From this
judgment and sentence Daniel Thomas Slape
has perfected his appeal. The Judgment and
Sentence of the District Court is AFFIRMED.
Opinion by A. Johnson, J.; Lumpkin, P.J., concurs; C. Johnson, V.P.J., concurs; Chapel, J.,
F-2006-467 — Appellant, Carl Wade Smallwood, was tried by jury in the District Court
of Oklahoma County, Case Number CF-20051417, and convicted of First Degree Rape
(Count I), and Kidnapping (Count II), both
after former conviction of two or more felonies, including prior convictions for both
rape and sodomy. The jury set punishment
at the mandatory sentence of life imprisonment without parole on count I and fifty (50)
years imprisonment on Count II. The trial
Vol. 78 — No. 20 — 7/28/2007
judge sentenced Appellant in accordance with
the jury’s determination and ordered the
sentences to run consecutively. Appellant
now appeals his convictions and sentences.
AFFIRMED. Opinion by Lumpkin, P.J.; C.
Johnson, V.P.J., concur; Chapel, J., concur in
result; A. Johnson, J., concur; Lewis, J., concur.
F-2006-786 — Appellant Michael Wayne
Buckridge was tried by jury and convicted of
two counts of Lewd Molestation, in the District
Court of Tulsa County, Case No. CF-2005-3115.
The jury recommended as punishment eight
(8) years imprisonment in each count and the
trial court sentenced accordingly, ordering
P.j.; C. Johnson, V.P.J., concur in part/dissent in
part; Chapel, J., concur in part/dissent in part;
A. Johnson, J., concur; Lewis, J., concur.
M-2006-370 — Jeremy Dion Nicholson,
Appellant, appealed to this Court from his
misdemeanor citations for six counts of Direct
Contempt of Court, imposed by the Honorable Twyla Mason Gray, District Judge, during the trial of Appellant’s co-defendant in
of Oklahoma County. One citation and sentence AFFIRMED; five citations and sentences
REVERSED and REMANDED with instructions to dismiss. Lumpkin, P.J., concurs; C.
Johnson, V.P.J., concurs; Chapel, J., dissents;
A. Johnson, J., concurs in result; and Lewis, J.,
concurs.
F-2005-1090 — Charles Howard Banks,
Appellant, was tried by jury for the crimes
of Trafficking in Illegal Drugs, after former
conviction of a felony (Count 1); Unlawful Possession of Marijuana, after former conviction
of a felony (Count 2); and Unlawful Possession of Paraphernalia (Count 4), in Case No.
CF-2004-4242 in the District Court of Tulsa
County. The jury returned a verdict of guilty
and recommended as punishment 28 years
imprisonment and a $30,000 fine on Count 1;
two years imprisonment and a $1,500 fine on
Count 2; and a $500 fine on Count 4. The trial
court sentenced accordingly. From this judgment and sentence Charles Howard Banks
has perfected his appeal. The Judgment and
Sentence of the District Court is AFFIRMED.
The case is REMANDED for correction of the
Judgment and Sentence document through
1883
an order nunc pro tunc to reflect that Banks’s
sentence in Count 2 is two years imprisonment
rather than 22 years imprisonment. Opinion by
A. Johnson, J.; Lumpkin, P.J., concurs; C. Johnson, V.P.J., concurs; Chapel, J., concurs in part,
dissents in part; Lewis, J., concurs in results.
C-2007-123 — Petitioner Daniel Del Brumit was charged with five counts of Lewd
Molestation, Case No. CF-2006-115, in the
District Court of Grady County. On October
24, 2006, Petitioner entered guilty pleas to all
charges before the Honorable Richard G. Van
Dyck, District Judge. The trial court accepted
the pleas and on January 16, 2007, sentenced
Petitioner to twenty (20) years imprisonment
in each count. The sentence in Count 2 was
ordered to run consecutive to the sentence in
Count 1. The sentences in Counts 3, 4, and 5
were ordered to run concurrent with each other
and consecutive to Counts 1 and 2 and were
suspended following Petitioner’s adherence to
the rules and conditions of probation. On January 25, 2007, Petitioner filed an Application to
Withdraw his Plea. At a hearing held on February 8, 2007, his application was denied. It is
that denial which is the subject of this appeal.
Accordingly, the order of the district court
denying Petitioner’s motion to withdraw plea
of guilty is AFFIRMED and CERTIORARI IS
DENIED. Opinion by C. Johnson, J.; Lumpkin,
P.J., concurs; C. Johnson, V.P.J., concurs; Chapel, J., concurs in part, dissents in part; Lewis,
J., concurs in results.
F-2006-110 — Appellant, Gilbert Vega, Jr.,
was tried by jury in the District Court of Oklahoma County, Case Number CF-2003-7032,
and convicted of First Degree Felony Murder
(while in the commission of Attempted Robbery with a Firearm. The jury set punishment
at life imprisonment without the possibility of
parole, and the trial judge sentenced Appellant accordingly. Appellant now appeals his
conviction and sentence. The conviction for
First Degree Murder is hereby AFFIRMED,
but the sentence is hereby REVERSED and
REMANDED for resentencing. Opinion by
Lumpkin, P.J.; C. Johnson, V.P.J., concur; Chapel, J., recuse; A. Johnson, J., concur; Lewis, J.,
concur in result.
F-2006-896 — Michael Wayne Schulze, Appellant, was tried by jury for the crimes of First
Degree Arson (Count I) after former conviction
of two felonies, Assault and Battery Domestic Abuse (Misdemeanor) (Count II), Assault
1884
and Battery (Misdemeanor) (Count III), and
Public Intoxication (Count IV) in Case No.
CF-2005-471, in the District Court of Cherokee
County. The jury returned a verdict of guilty
and recommended as punishment forty-five
(45) years imprisonment and a $25,000 fine on
Count I, one (1) year in county jail and a $5,000
fine on Count II, ninety (90) days in jail and
a $750 fine on Count III, and thirty (30) days
in jail and a $100 fine on Count IV. The trial
court sentenced accordingly. From this judgment and sentence Michael Wayne Schulze has
perfected his appeal. The Judgments and Sentences of the District Court for Counts I and
II are AFFIRMED. The Judgments for Counts
III and IV are MODIFIED by VACATING the
fines imposed for those Counts. Schulze’s
Motion for New Trial is DENIED. Opinion by
Chapel, J.; Lumpkin, P.J., concur; C. Johnson,
V.P.J., concur; A. Johnson, J., concur; Lewis, J.,
concur.
F-2006-657 — Appellant Kendell Charles
Jones was tried by jury and convicted of Second Degree Rape by Instrumentation (Count
I); First Degree Burglary (Count II); and Second
Degree Burglary (Count III), both counts After
Former Conviction of Two or More Felonies, in
the District Court of Oklahoma County, Case
No. CF-2005-4503. The jury recommended as
punishment sixty (60) years imprisonment
in Count I, thirty (30) years imprisonment in
Count II, and ten (10) years imprisonment in
Count III. The trial court sentenced accordingly, ordering the sentences to run consecutively.
It is from these judgments and sentences that
Appellant appeals. AFFIRMED. Opinion by
Lumpkin, P.J.; C. Johnson, V.P.J.; concur; Chapel, J., concur in part/dissent in part; A. Johnson, J., concur in part/dissent in part; Lewis, J.,
concur in result.
F-2006-70 — Joshua W. Phares, Appellant,
was tried by jury for the crimes of First Degree
Murder (Count 1); Robbery with a Dangerous Weapon (Count 2); and Possession of a
Controlled Dangerous Substance with Intent
to Distribute (Count 3), in Case No. CF-2004157 in the District Court of Oklahoma County.
The jury returned a verdict of guilty and recommended as punishment life imprisonment
without the possibility of parole on Count 1,
20 years imprisonment on Count 2, and 15
years imprisonment on Count 3. The trial court
sentenced accordingly, ordering the sentences
Vol. 78 — No. 20 — 7/28/2007
to be served concurrently. From this judgment
and sentence Joshua W. Phares has perfected
his appeal. The Judgment and Sentence of the
district court on Counts 2 and 3 is AFFIRMED.
The Judgment of the district court on Count 1
is AFFIRMED. The case is REMANDED to the
district court with instructions to conduct a
new sentencing proceeding with appropriate
instruction on Count 1. Opinion by A. Johnson,
J.; Lumpkin, P.J., concurs in part and dissents
in part; C. Johnson, V.P.J., concurs; Chapel, J.,
F-2005-782 — Albert Donnell James, Appellant, was tried by jury for the crime of First
Degree Murder in Case No. CF-2003-6933
in the District Court of Oklahoma County.
with the possibility of parole. The trial court
and sentence Albert Donnell James has perfected his appeal. The Judgment and Sentence
of the Trial Court is AFFIRMED. Opinion by A.
Johnson, J.; Lumpkin, P.J., concurs; C. Johnson,
concurs in results.
F-2006-212 — Darrell Robert Johnson, Appellant, was tried by jury for Trafficking in Illegal
Drugs, After Former Conviction of Two or
More Felonies (Count I) and Possession of
Paraphernalia (Count II), in Case No. CF-20025046 in the District Court of Tulsa County.
without the possibility of parole and a $20,000
fine on Count I and one year in jail and a $1,000
fine on Count II, with the sentences to run
concurrently. The trial court sentenced accordingly. From this judgment and sentence Darrell Robert Johnson has perfected his appeal.
Lumpkin, P.J., concur in results; Chapel, J.,
concur in part/dissent in part; A. Johnson, J.,
concur; Lewis, J., concur in results.
F-2006-878 — Lloyd Daniel Williams, Jr.,
Appellant, was tried by jury for the crime of
Second Degree Rape in Case No. CF-2005-58
in the District Court of Muskogee County.
The jury returned a verdict of guilty and recommended as punishment five years imprisonment. The trial court sentenced accordingly. From this judgment and sentence Lloyd
Daniel Williams, Jr. has perfected his appeal.
Vol. 78 — No. 20 — 7/28/2007
Lumpkin, P.J., concur; Chapel, J., concur; A.
Johnson, J., concur; Lewis, J., concur.
Monday, July 23, 2007
M-2006-814 — Paul C. Tay, Appellant,
appealed to this Court from his misdemeanor
Judgment and Sentence for the offense of
Bicycle — Not Riding on Right, entered after
a non-jury trial before the Honorable Burk
Bishop, Municipal Judge, in Case No. 5270118
in the Municipal Court of the City of Tulsa.
AFFIRMED. Lumpkin, P.J., concurs; C. Johnson, V.P.J., concurs; Chapel, J., concurs; A.
Johnson, J., concurs; and Lewis, J., concurs.
M-2006-369 — Appellant Bill Wayne Heath
was tried in a non-jury trial and found guilty
of Assault and Battery before the Honorable
Craig S. Key, Associate District Judge, in Lincoln County District Court Case No. CM-2002301. Appellant was sentenced to thirty (30)
days in the county jail, plus a fine and costs.
Appellant appeals. Appellant’s Judgment and
Sentence is AFFIRMED. Lumpkin, P.J., concurs;
A. Johnson, J., concurs; Lewis, J. concurs.
RE 2006-0720 — Appellant, Dale Gene Lewis,
pled guilty March 7, 2006, in the District Court
of Tulsa County, Case No. CF-2005-5154, to
Unauthorized Use of Vehicle. He was sentenced to six years with all time suspended
and with rules and conditions of probation.
Appellant was fined $500.00 and ordered to
pay restitution in the amount of $955.00. The
State filed an application to revoke Appellant’s
suspended sentence on May 25, 2006. Following a revocation hearing June 23, 2006, before
the Honorable Tom C. Gillert, District Judge,
Appellant’s suspended sentence was revoked
in full. Appellant appeals from the revocation
of his suspended sentence. The revocation of
Appellant’s suspended sentence in the District
Court of Tulsa County, District Court Case No.
CF-2005-5154, is AFFIRMED. Lumpkin, P.J.,
concurs.
F-2006-785 — Casey Virgil Walston, Appellant, appealed to this Court from the acceleration of his deferred judgment and sentencing,
entered by the Honorable Ray C. Elliott, District Judge, in Case No. CF-2003-1949 in the
District Court of Oklahoma County. DENIED.
1885
concurs; and Lewis, J., concurs.
COURT OF CIVIL APPEALS
(Division No. 1)
103,274 — Damon Colclasure, Plaintiff/
Appellee, vs. Castle Enterprises, Inc., and Todd
D. Harlin, Defendants/Appellants, and Castle
Enterprises, Inc., Third-Party Plaintiff, and
Hillis Family Trust, Third-Party Defendant.
Appeal from the District Court of Oklahoma County, Oklahoma. Honorable Barbara
G. Swinton, Trial Judge. Plaintiff brought this
quiet title action against Defendants to have a
tax deed voided on his homestead in Oklahoma City. Plaintiff is currently record owner of
the subject property. Plaintiff filed a motion for
summary judgment contending the Oklahoma
County Treasurer did not have jurisdiction to
sell the property because as joint trustees of
the Hillis Family Trust, neither he nor Mr. Hillis received constitutionally sufficient notice
of the original tax sale. Defendants contend 68
O.S. 2001 §3106 does not require return receipt
requested in its notice of tax sale, and because
there was not certified mail notice returned to
the treasurer’s file as “unclaimed”, Plaintiff
received notice. As a matter of law, Plaintiff did
not receive constitutionally sufficient notice of
the tax resale. Therefore, the Treasurer did not
acquire jurisdiction to conduct the original tax
sale. It is immaterial whether Plaintiff received
proper notice of the application for tax deed.
The tax deed is void. The trial court properly
quieted title to the subject property in Plaintiff.
AFFIRMED. Opinion by Hansen, P.J.; Buettner,
J., dissents, and Bell, J., concurs.
103,735 — (Consolidated w/103,744) In the
Matter of A.S., M.S., and E.S., Alleged Deprived
Children. Michael Gene Smith and Amanda
Smith, Appellants, vs. State of Oklahoma,
Appellee. Appeal from the District Court of
Pawnee County, Oklahoma. Honorable Matthew D. Henry, Trial Judge. Appellants (Parents), seek review of the trial court’s judgment
terminating their parental rights. An order terminating parental rights must identify the specific statutory basis relied on and must contain
the specific findings required by that statutory
provision. The trial court’s order terminating
Appellants’ rights is fundamentally deficient
in that it fails to find termination was in the
children’s best interest and failed to include
the statutory findings. The order is reversed
1886
and this matter is remanded for further proceedings. The trial court’s last custody order
remains in effect. REVERSED AND REMANDED. Opinion by Hansen, P.J.; Buettner, J.,
concurs, and Bell, J., dissents.
104,260 — Tuboscope Vetco International
and Ace American Insurance Co., Petitioner, vs. Mark Christopher Brumley, and The
Workers’ Compensation Court, Respondents.
Proceeding to Review an Order of The Workers’ Compensation Court. Honorable Ellen C.
Edwards, Trial Judge. Petitioners (Employer),
seek review of the order finding Respondent
(Claimant) sustained a compensable injury
while working for Employer. Employer alleges
the court erred in finding Employer did not
prove its “intoxication defense.” The accident
resulted from a truck hitting a rack of pipe
casing, causing the casing to hit Claimant.
Claimant testified he did not see the truck
because he was facing the other way and did
not hear it because of oilfield noise. Claimant
testified he had last used marijuana sixteen
days prior to the accident. Both Claimant’s
and Employer’s medical experts testified by
deposition that tetrahydrocannabinol (THC),
the main active substance in marijuana, could
remain detectable in the body for in excess of
thirty days. The medical evidence was also
that it could not be determined from the test
results when the marijuana had been used.
The record only establishes Claimant had used
marijuana at some time within the period in
which THC could still be detected. Claimant
established his use of illegal drugs was not the
proximate cause of the accident or his injuries.
Employer failed in its burden to prove Claimant’s injury occurred when he was using the
illegal drug. SUSTAINED. Opinion by Hansen,
P.J.; Buettner, J., concurs in result, and Bell, J.,
concurs.
104,306 — Brenda Kathleen Deise, Petitioner, vs. Mastercuts/Regis Corp., The Hartford
Insurance Co. Of the Midwest, and The Workers’ Compensation Court, Respondents. Proceeding to Review an Order of a Three-Judge
Panel of The Workers’ Compensation Court.
Petitioner Brenda Deise seeks review of an
Order of a three-judge panel of the Workers’
Compensation Court which vacated the trial
court’s finding that Deise’s claimed injury
was compensable. Deise sought compensation for injuries resulting from an automobile accident which occurred after she made
a bank deposit for Respondent Mastercuts/
Vol. 78 — No. 20 — 7/28/2007
Regis Corp. (Employer). The parties disputed
whether Deise was on a special mission at the
time of the injury. The panel’s Order is supported by competent evidence and we sustain.
SUSTAINED. Opinion by Buettner, J.; Hansen,
P.J., and Bell, J., concur.
104,311 — Kathy Lytle, Petitioner, vs. Integrated Solutions Group, and The Workers’
Compensation Court, Respondents. Proceeding to Review an Order of a Three-Judge
Petitioner (Claimant) seeks review of a Workers’ Compensation Court (WCC) order finding, inter alia, Claimant was not permanently
totally disabled (PTD) as a result of a low back
injury sustained while working for Respondent (Employer), and that the low back injury
only resulted in 26% permanent partial disability (PPD). Claimant contends the court erred
in admitting the report of Employer’s medical expert, Dr. G, because it deviates from the
A.M.A. Guides. Therefore, Claimant argues the
report is incompetent. Claimant’s objections
on competency grounds can not avail because
the contested report had been admitted at a
previous hearing in the same case, and was
no longer subject to an objection as to admissibility. Because Dr. G’s report was already
admitted and before the trial court, it was the
court’s prerogative to assign such probative
weight to the report as it deemed proper. The
trial court found Dr. G’s opinion that Claimant
was not PTD persuasive, as did the majority
of the three-judge panel. Similarly, the WCC’s
finding that Claimant was 26% PPD was properly within the range of medical opinion. There
is competent evidence to support the WCC’s
order. SUSTAINED. Opinion by Hansen, P.J.;
Buettner, J., and Bell, J., concur.
104,354 — GDT CG1, LLC; Ministries of Jesus,
Inc.; and Transformation Fitness Center, LLC,
Plaintiffs/Appellants, vs. Oklahoma County
Board of Equalization and Oklahoma County
Assessor, Defendants/Appellees. Appeal from
the District Court of Oklahoma County, Oklahoma. Honorable Daniel L. Owens, Judge.
Plaintiffs/Appellants GDT CG1, LLC (Property Owner), Ministries of Jesus, Inc. (MJI),
and Transformation Fitness Center, LLC (Fitness Center)(collectively, Appellants) appeal
from summary judgment entered in favor of
Defendants/Appellees Board of Equalization
of Oklahoma County and Oklahoma County
Assessor (collectively, County) which affirmed
County’s ruling that Appellants were not entiVol. 78 — No. 20 — 7/28/2007
tled to an ad valorem tax exemption. The question presented is whether a non-profit fitness
center, which charges most users a fee comparable to other fitness centers in the area, but
which offers free services to persons referred
by its charitable free health clinic owner, is
used exclusively for charitable purposes and
thus qualifies for exemption from ad valorem
taxation pursuant to 68 O.S.Supp.2004 §2887.
The record shows that MJI purchased Fitness
Center to further its purpose of ministering to
the physical, emotional, and spiritual needs of
its clients, without charge. Although Fitness
Center charges membership fees to some clients, it also offers free services to MJI patients,
and free sports programs to those unable
to pay, and is therefore part of MJI’s charitable operation. Fitness Center is therefore
exempt from ad valorem taxation. We reverse
and remand with directions to enter judgment in favor of Appellants. REVERSED AND
REMANDED WITH DIRECTIONS. Opinion
by Buettner, J.; Hansen, P.J., concurs in result,
and Bell, J., concurs.
104,425 — Cecil Riding In, Plaintiff/Appellant, vs. Keith Cheatham, Defendant/Appellee. Appeal from the District Court of Pawnee
County, Oklahoma. Honorable Matthew D.
Henry, Judge. Plaintiff/Appellant Cecil Riding
In (Riding In) filed an action contesting Defendant/Appellee Keith Cheatham’s (Cheatham)
title to public office, viz., Ward 3 Pawnee City
Council seat. Cheatham filed a Motion to
Dismiss on the ground that 12 O.S.2001 §1531
requires such actions be instituted before the
expiration of 30 days after the alleged usurping official is inducted into office. Riding In
countered that his intervening unsuccessful
attempt at extraordinary relief in the Oklahoma Supreme Court, which was filed within
30 days, was timely and invoked the savings
clause of 12 O.S.2001 §100. The trial court
granted the Motion to Dismiss. We affirm.
AFFIRMED. Opinion by Buettner, J.; Hansen,
P.J., and Bell, J., concur.
104,549 — William Gary Smith, Plaintiff/
Appellant, vs. Thomas A. Layon and Richard
Warzynski d/b/a Layon Cronnin & Clark, a
Professional Association, Defendants/Appellees. Appeal from the District Court of Tulsa
County, Oklahoma. Honorable Deborah C.
Shallcross, Trial Judge. Defendants represented Plaintiff in a negligence action involving
a 1997 automobile accident. The vehicle was
owned by Accurate Auto Sales and was driven
1887
by Nathan Hostetler, the owner of Accurate.
Plaintiff settled the action in exchange for
payment of the policy limit of Accurate’s
insurer. Almost four years after the settlement
Plaintiff filed the present action against Defendants contending Defendants assured him
that accepting a settlement amount which was
less than his damages would still allow him
to proceed against Hostetler in state court. He
alleged negligence and submitted Defendants
breached their duty of the standard of care by
which Defendants were mandated to practice.
Defendants filed a motion for summary judgment citing the two year limitation of 12 O.S.
2001 §95 applicable to legal malpractice action,
an action in tort. Any act or advice Defendants gave Plaintiff is not actionable because it
occurred almost four years before he filed suit.
We find the trial court properly granted summary judgment as a matter of law to Defendants based on the running of the statute of
limitations. AFFIRMED. Opinion by Hansen,
P.J.; Buettner, J., and Bell, J., concur.
103,254 — CNA PRO 2000 Inc., Plaintiff/
Appellant, vs. Michael Fogarty, Executive
Director of the Oklahoma Health Care Authority, and Oklahoma Health Care Authority,
Defendants/Appellees. Appeal from the District Court of Oklahoma County, Oklahoma.
Honorable Patricia G. Parrish, Judge. Appellant (CNA) appeals the district court’s order
affirming the decision of an Administrative
Law Judge (ALJ) which sustained the claims
denial by Appellee (Authority). Authority denied CNA’s reimbursement claims for
nurse aid training fees advanced to students.
Authority construed the version of Oklahoma
Administrative Code (OAC) 317:30-5-134 in
effect at all times relevant to this matter as
requiring the actual expenditure of funds by a
student for nurse aide training fees before the
Authority will reimburse the student for such
fees. Because no students actually paid for the
training provided by CNA, the Authority held
CNA was not entitled to reimbursement. There
is no question CNA provided the training; the
students were contractually obligated to pay
for such training; and, many students subsequently became employed as nurse aides in a
nursing facility. It is also uncontroverted that
CNA has not been compensated, whatsoever,
for the training it provided. Thus, the dispositive issue is whether the Authority properly
interpreted Congress’ intent and the language
1888
of its own rule by requiring a student’s actual
payment of nurse aide training fees before
said student qualifies for reimbursement.
After reviewing applicable law, we find the
Authority’s construction of its own rule was
over broad and unreasonable. We reverse the
district court’s order and remand this matter to Authority with directions to determine
a reasonable amount of nurse aide training
fees and to reimburse said amount to CNA
for students meeting the employment requirements of OAC 317:30-5-134. REVERSED AND
REMANDED. Opinion by Bell, J.; Hansen, P.J.,
concurs, and Adams, J. (sitting by designation), concurs in part, dissents in part.
103,464 — Lexmark Homes, Inc., an Oklahoma corporation, Plaintiff, vs. Lexie M. Johnson,
Defendant/Third-Party Plaintiff/Appellant,
vs. Darrell G. Jenkins, Wesley D. Jenkins and
Larry W. Jenkins, Third-Party Defendants/
Appellees. Appeal from the District Court of
Tulsa County, Oklahoma. Honorable Deborah C. Shallcross, Judge. Appellant (Johnson)
appeals from the trial court’s denial of her
motion to declare void her own dismissal of
all claims against Appellees (Jenkins). The trial
court denied the motion, concluding (1) the
issues contained in Johnson’s petition were
properly ordered consolidated, (2) Johnson
abandoned her claims by filing her dismissal,
(3) the journal entry of judgment in the consolidated cases is a final judgment adjudicating
all issues, and (4) Johnson is precluded from
litigating or relitigating identical issues with
the same party or parties set for trial June 14,
2004. The basic premise of Johnson’s argument — that the trial court did not authorize
the dismissal — is unfounded. The trial court
retroactively approved the dismissal. We hold
the trial court did not abuse its discretion by
allowing Johnson’s voluntary dismissal after
the case was finally submitted. We also find
Johnson’s motion to declare her dismissal void
is an untimely attack upon the judgment of
the trial court. The judgment in the consolidated cases was filed of record on August 4,
2004. Johnson’s motion attacking an underlying procedural ruling encompassed within
the judgment, filed December 29, 2005, was
brought well beyond thirty days from the date
the final judgment was filed of record. We are
guided by the longstanding rule that parties to
an action on appeal are not permitted to secure
a reversal of a judgment upon error which they
have invited, acquiesced or tacitly conceded
Vol. 78 — No. 20 — 7/28/2007
in. The trial court’s judgment is AFFIRMED.
Opinion by Bell, J.; Hansen, P.J., and Buettner,
J., concur.
103,484 — (Comp. w/103,485) T.W. Snyder
and Caryn Snyder, Plaintiffs/Appellees, vs.
Jerry Standifer, Defendant/Appellant. Appeal
from the District Court of Bryan County,
Oklahoma. Honorable Trace C. Sherrill, Trial
Judge. Appellees, T.W., a/k/a Thomas, and
Caryn Snyder, pursuant to The Protection
From Domestic Abuse Act, 22 O.S.2006 Supp.
§60 et seq, filed a petition for a protective
order against Appellant, Jerry Standifer. Two
days earlier, Jerry and his wife, Nancy, had
filed a petition for a protective order against
Thomas. Both cases, as well as a third case,
were consolidated for hearing. The trial court
granted Thomas and Caryn’s petition against
Jerry on the ground of harassment and denied
Jerry and Nancy’s petition against Thomas.
Jerry appeals and contends the court abused
its discretion because its findings are not supported by the evidence. In applying §60.1(3) to
the incidents which occurred, there is evidence
these willful confrontations with Caryn and
Thomas seriously annoyed and alarmed them,
served no legitimate purpose, and caused
them substantial emotional distress. In addition, Jerry’s brief in chief is not reasonably supportive of his allegations of error. We find the
court’s orders are supported by the law and
the evidence. AFFIRMED. Opinion by Hansen,
P.J.; Buettner, J., and Bell, J., concur.
103,485 — (Comp. w/103,484) Jerry Standifer and Nancy Standifer, Plaintiffs/Appellants,
vs. Thomas W. Snyder, Defendant/Appellee.
Appeal from the District Court of Bryan County, Oklahoma. Honorable Trace C. Sherrill,
Trial Judge Appellants, Jerry and Nancy Standifer, pursuant to The Protection From Domestic Abuse Act, 22 O.S. 2006 Supp. §60 et seq.,
filed a petition for a protective order against
Appellee, Thomas a/k/a T.W. Snyder. Two
days later, Thomas and his wife, Caryn filed
a petition for a protective order against Jerry.
Both cases, as well as a third case, were consolidated for hearing. The trial court granted
Thomas and Caryn’s petition for protective
order against Jerry on the ground of harassment and denied Jerry and Nancy’s petition
against Thomas. Jerry and Nancy appeal and
contend the court abused its discretion in dismissing their petition against Thomas because
there was evidence of three separate events
warranting such a protective order. Applying
Vol. 78 — No. 20 — 7/28/2007
§60.1(3) to the facts there is evidence supporting the issuance of a protective order in favor
of Jerry against Thomas on grounds of harassment. Applying §60.1(1), evidence supports
the issuance of a protective order in favor
of both Jerry and Nancy against Thomas on
grounds of domestic abuse. In addition, Jerry
and Nancy’s brief in chief is reasonably supportive of their allegations of error. The trial
court abused its discretion in dismissing their
petition for a protective order against Thomas.
REVERSED AND REMANDED with directions
for the trial court to issue a protective order in
favor of Jerry and Nancy against Thomas.
REVERSED AND REMANDED WITH DIRECTIONS. Opinion by Hansen, P.J.; Buettner, J.,
and Bell, J., concur.
103,677 — State of Oklahoma ex rel., Department of Transportation, Plaintiff/Appellee, vs.
Elmer M. Downey, deceased, his/her known
or unknown heirs, executors, administrators, legatees, devisees, trustees, creditors &
assigns; and, Frances D. Downey, husband
and wife; and, The Logan County Treasurer,
Defendant/Appellants. Appeal from the District Court of Logan County, Oklahoma. Honorable Donald L. Worthington, Trial Judge. In
this eminent domain action, commissioners
appointed by the court, determined Defendant (Downey) was entitled to payment of
$65,243.00 as just compensation for Plaintiff’s
(DOT) taking of certain property belonging to
Downey. Downey filed exceptions and asked
for a jury trial. The jury set compensation at
$85,000.00, thus exceeding the commissioners’ appraisal by $19,757.00. Because the jury’s
award far exceeded the 10% level, Downey
sought attorney fees, appraisal fees, engineering fees and expert witness fees in the total
amount of $120,000.00, and attached detailed
records reflecting this amount was actually
incurred and paid. The trial court found these
amounts to be unreasonable and reduced the
award substantially because the difference
between the jury’s award and the commissioner’s award was only $19,757.00. Downey
appeals. The trial court awarded $69,370.00.
The effect of the reduction is that Downey paid
$49,630.00 in expenses out of her own pocket.
If this amount is subtracted from the jury’s
award of $85,000.00, her net monetary relief
is reduced to $35,370.00. Under this scenario,
Downey would have been financially better
off taking the commissioner’s award. If uniformly applied to condemnation proceedings,
1889
this view would certainly deter landowners
from seeking a jury trial. This is not the intent
of the fee shifting statute in condemnation
proceedings. The trial court erred in using the
$19,757.00 as the net recovery in determining if the fees requested were not reasonable.
REVERSED AND REMANDED. Opinion by
Hansen, P.J.; Buettner, J., concurs in result with
opinion, and Bell, J., concurs.
103,952 — Stacy Lee, Petitioner/Appellant, vs. Linda K. Lee, Respondent/Appellee.
Appeal from the District Court of Noble County, Oklahoma. Honorable Dan Allen, Judge.
In this post-decree child custody proceeding,
Appellant (Father) appeals the trial court’s
order denying his motion to vacate a default
judgment transferring jurisdiction for inconvenient forum. After reviewing Heitman v. Brown,
1996 OK CIV APP 148, 933 P.2d 948, we hold
under the circumstances of the instant case,
the trial court abused its discretion in refusing
to vacate the default judgment. In considering the transfer of child custody jurisdiction,
43 O.S. 2001 §551-207 requires the trial court
to consider various factors in determining
whether to decline to exercise jurisdiction for
inconvenient forum because another state is
a more appropriate forum. There is no indication in the order granting transfer that this
was done. Rather, it appears that Father’s lack
of response was the prime factor. The trial
court’s failure to specifically consider the statutorily listed factors militate in favor of vacating the transfer order and allowing Father’s
response. Father’s attorney had miscalculated
the response date; Mother had no objection to
an extension of time and no prejudice would
have resulted from vacating the transfer order.
Mother’s request for appeal-related attorney
fees is denied. REVERSED AND REMANDED.
Opinion by Bell, J.; Hansen, P.J., and Buettner,
J., concur.
104,088 — Patricia Miller, Plaintiff, vs. RGD
Building Co., an Oklahoma Limited Partnership; RGD Enterprises, Inc.; and Randol
Duncan, Defendants/Third-Party Plaintiffs/
Appellants, and Parke Window Company, an
Oklahoma Corporation a/k/a, Park Windows,
L.L.C., Third-Party Defendant/Appellee.
Appeal from the District Court of Oklahoma
County, Oklahoma. Honorable Noma Gurich,
Trial Judge. Defendant/Third-Party Plaintiff/
Appellants (Builder) seek review of the trial
court’s order granting summary judgment in
favor of Third-Party Defendant/Appellee (Sub1890
contractor) based on its findings; (1) Builder’s
claim against Subcontractor was for contribution rather than indemnity, and (2) the settlement agreement between Builder and Plaintiff
(Homeowner) extinguished Builder’s claim for
contribution pursuant to 12 O.S.2001 §832(D).
Because reasonable people exercising fair and
impartial judgment could reach differing conclusions upon the undisputed facts in this case,
summary judgment is in error. We reverse and
remand for trial, finding the record presents
a question of fact as to whether Builder was
a joint tortfeasor or indemnitee. Because we
reverse the judgment in favor of Subcontractor, Subcontractor’s counter-appeal of the trial
court’s order denying its motion for attorney
fees is moot. REVERSED AND REMANDED.
Opinion by Hansen, P.J.; Buettner, J., and Bell,
J., concur.
104,256 — Oklahoma City and Golf & Country Club and Valley Forge Insurance Company,
Petitioners, vs. George R. Stell and The Workers’ Compensation Court, Respondents. Proceeding to Review an Order of a Three-Judge
Petitioner (Employer) seeks review of an order
of a Three-Judge Panel which affirmed the
order of the trial court but modified the order
to find that Claimant had no injurious exposure
in his subsequent employment. Employer contends Respondent (Claimant) was employed
for less than six months. Therefore, the last
employer who employed Claimant for a period of ninety days or more is liable for all compensation due Claimant. We reject Employer’s
argument Claimant sustained no injurious
exposure in his subsequent employment. We
find ample competent medical evidence and
testimony demonstrating that Claimant’s knee
impairment was attributable to the cumulative
trauma injury sustained while working for
Employer. SUSTAINED. Opinion by Bell, J.;
Hansen, P.J., and Buettner, J., concur.
104,402 — Pangaea Exploration Corporation,
successor to Mickey J. Overall, Plaintiff/Counter-Defendant/Appellee, vs. Sarah Ryland,
Marie Billings, Barbara Ann Gill, Ross Lee
Thomas, Mildred Ellis, Georgia Burlingame,
Jacob W. Blevins, Ruth M. Blevins, Bill Dolan,
Barth Campbell, Denise Campbell, Kevin
Campbell, James Lynn Blevins, Roy Phillip
Blevins, Arleta Gayle Blevins, Steven Ellis
Blevins, Michelle Blevins, David M. Blevins,
and John M. Billings, Defendants/CounterPlaintiffs/Third-Party Plaintiffs/Appellants,
Vol. 78 — No. 20 — 7/28/2007
and Grace Arlene Billings, Judith Marie Teeple,
Elizabeth Billings, and Phern Billings, Defendants/Counter-Plaintiffs/Third-Party Plaintiffs, v. Oklahoma Title & Closing Company,
Inc., Third-Party Defendant. Appeal from the
District Court of Logan County, Oklahoma.
Honorable Donald L. Worthington, Judge.
Defendants/Counter-Plaintiffs/Appellants
Sarah Ryland, Marie Billings, Barbara Ann
Gill, Ross Lee Thomas, Mildred Ellis, Georgia
Burlingame, Jacob W. Blevins, Ruth M. Blevins,
Bill Dolan, Barth Campbell, Denise Campbell,
Kevin Campbell, James Lynn Blevins, Roy Phillip Blevins, Arleta Gayle Blevins, Steven Ellis
Blevins, Michelle Blevins, David M. Blevins,
and John M. Billings (Appellants) appeal from
summary judgment granted in favor of Plaintiff/Counter-Defendant/Appellee Pangaea
Exploration Corporation (Pangaea). The facts
of this case relating to the statute of limitations defense are undisputed. We hold that
Appellants’ counterclaim is not barred by any
statute of limitations. We reverse summary
judgment against Appellants and remand for
trial. REVERSED AND REMANDED. Opinion
by Buettner, J.; Hansen, P.J., dissents, and Bell,
J., concurs.
104,524 — Tom Horn; Elnora R. Williams;
Mary Lorene Horn; Thresa Arthur; Donna
Horn; Thomas Ray Smith; Gladys Rae Alexander; Harry Horn; Lisa Kay Carter; Mary
Sue Brooks; Jacqueline Chappell Johnston;
Carl G. Chappell; Jerry Chappell; Betty L.
Chappell; Clyde M. Horn; George R. Horn,
a/k/a G.R. Horn, Jr.; Bette L. Heyer; and Lola
Horn, Plaintiffs/Appellants, vs. Larry Jake
Horn and Linda Sue Horn; Individually; Jo
Ann Horn, Individually; Fred Michael Horn,
a/k/a Fred Horn and Jo Ann Horn, Trustees
of the Fred Horn Loving (a/k/a Living) Trust
Dated March 27, 1990; Myrna Delores Shook;
Gothic Production Corporation; Key Operating Company; Chesapeake Operating, Inc.;
and Chesapeake Exploration, Limited Partnership, Defendants/Appellees. Appeal from the
District Court of Canadian County, Oklahoma.
Honorable Edward C. Cunningham, Judge.
Plaintiffs/Appellants appeal from the trial
court’s grant of summary judgment in favor of
the individual and trustee Defendants/Appellees in Plaintiffs’ action to reform two deeds,
quiet title to certain mineral interests and for
an accounting. At issue is whether Plaintiffs’
action is time barred. Plaintiffs contend any
limitations period was tolled until 2005, when
Vol. 78 — No. 20 — 7/28/2007
one of them received a letter from Chesapeake
Energy Corporation regarding the drilling of a
test well on or near the subject property. It was
only then that Plaintiffs “discovered” the mistake/fraud/inequitable conduct by reviewing
the recorded deeds. Defendants maintain the
statute of limitations began to run upon the
respective filing of the two deeds. We agree
with Defendants. The two quitclaim deeds
unambiguously conveyed all the rights of
Plaintiffs’ predecessors in interest to the subject property, without any mineral reservation, to Defendants’ predecessors in interest.
Plaintiffs’ suit to reform said deeds, as well
as their two other related claims, is barred by
limitations. The trial court properly granted
Defendants’ motion for summary judgment.
AFFIRMED. Opinion by Bell, J.; Hansen, P.J.,
and Buettner, J., concur.
104,582 — Anna Perez, as Mother and Next
Friend of Andreanna Gissandaner, a minor,
Plaintiff/Appellant, vs. Enid Public Schools,
Defendant/Appellee, Garfield County School
District #I-57, John Provine, M.D., individually, Oklahoma Department of Health, and
Oklahoma Department of Human Services,
Defendants. Appeal from the District Court of
Garfield County, Oklahoma. Honorable Dennis Hladik, Judge. Plaintiff/Appellant Anna
Perez, as Mother and Next Friend of Andreanna Gissandaner, a minor, appeals from summary judgment granted in favor of Defendant/
Appellee Enid Public Schools (School). Perez
submitted a Governmental Tort Claims Act
claim against School March 25, 2002. School
made no response and the claim was deemed
denied by operation of law on or about June
25, 2002. Perez then had 180 days in which to
commence an action against School. Perez did
not file her Petition until February 20, 2003.
The trial court found the undisputed evidence
showed that Perez’s lawsuit was untimely as a
matter of law and therefore granted judgment
in favor of School. We affirm. AFFIRMED.
Opinion by Buettner, J.; Hansen, P.J., and Bell,
J., concur.
104,601 — Linda Gens, an individual, personally and as next friend of Thomas Gens, a
minor, Plaintiff/Appellant, vs. Casady School,
a Not-For-Profit Corporation, Defendant/
Oklahoma County, Oklahoma. Honorable
Vicki L. Robertson, Judge. Plaintiff/Appellant
Linda Gens appeals from the trial court’s order
denying her Motion to Vacate an earlier order
1891
which dismissed with prejudice Gens’s claims
for breach of contract, bad faith, replevin,
conversion, and invasion of privacy. Gens dismissed her remaining claims without prejudice
and the trial court’s Order therefore disposes
of all remaining claims and is a final, appealable order. Gens sued Defendant/Appellee
Casady School after she withdrew her son
from school at Casady’s request. Gens claimed
she had a property right to possession of
records kept by Casady relating both to Gens’s
son and to Gens’s deceased husband who
had been employed by Casady. Gens claimed
Casady breached a promise, made before her
husband’s death, that their son would be
welcome at Casady for the remainder of his
school years. Gens claimed Casady invaded
her child’s privacy by conducting psychological testing of him. We find no abuse of discretion in the denial of Gens’s Motion to Vacate
because Gens failed to allege facts entitling
her to relief on any of the dismissed claims.
We affirm. AFFIRMED. Opinion by Buettner,
J.; Hansen, P.J., concurs, and Bell, J., concurs in
part and dissents in part.
104,603 — Suzanne Chaney, Plaintiff/Appellant, vs. Paul Chaney; Mary Chaney Garrison,
Individually and as Co-Trustees of the Robert
W. Chaney Revocable Trust, and Industrial
Rubber, Inc., Defendants/Appellees. Appeal
from the District Court of Oklahoma County,
Oklahoma. Honorable Vicki L. Robertson, Trial
Judge. Appellant (Widow) seeks review of the
court’s order granting Appellees Motion to
Dismiss. Widow’s petition fails to state a claim
for defamation, civil conspiracy, or abuse of
process. Her petition does, however, state a
claim for breach of fiduciary duty. She alleges
the co-trustees of decedent’s trust (Son and
Daughter) have a duty to pay her monies specifically bequeathed to her and have wrongfully refused to do so. Appellees’ Motion to
Dismiss asserts the trustees do not have a current duty to make distributions from the trust
because the trust has not received distribution
from the probate estate and the trustees have
not received an estate tax closing letter from
the Internal Revenue Service. Whether the duty
to make Widow’s distribution has matured is a
question of fact. The trial court’s dismissal
with prejudice of Widow’s claim for breach of
fiduciary duty is in error. The court’s order is
reversed to the extent it dismissed Widow’s
claim against Son and Daughter for breach
of fiduciary duty and is affirmed in all other
1892
respects. AFFIRMED IN PART, REVERSED
IN PART, AND REMANDED. Opinion by
Hansen, P.J.; Buettner, J., and Bell, J., concur.
(Division No. 2)
103,515 — Charles Andrew Permaul, Plaintiff/Appellee, v. Oklahoma Health Care
Authority, Defendant/Appellant. Appeal from
order of the District Court of Tulsa County, Hon.
Ronald L. Shaffer, Trial Judge. The trial court
defendant, Oklahoma Health Care Authority
(OHCA), appeals a judgment entered on a jury
verdict awarding the plaintiff, Charles Andrew
Permaul (Permaul), $12,618.21 for services performed. The issue in the appeal is whether the
three-year Statute of Limitations for bringing
suit on a contract, characterized by OHCA as
an oral contract, had expired before Permaul
filed his case. At trial, OHCA failed to present
any evidence rebutting Permaul’s evidence of
promised retroactive payment upon contract
execution. The parties do not dispute that Permaul, through his clinic, provided medical services during August, September and October
of 2000, or the amount, if due, for such services
is $12,618.21. Permaul filed suit in November
2003. OHCA’s single issue on appeal is that
the claim is barred by the three-year Statute
of Limitations. The parties also agree that the
three-year period applies, but disagree about
the date on which the Limitations period
began to run. The three-year limitations period
applies to “actions upon a contract express or
implied not in writing.” The facts of the case
establish an implied contract. An implied contract is one, the existence and terms of which
are manifested by conduct. Bearing in mind
that the decided facts presumptively favor
Permaul, one of the components of the implied
contract was that OHCA would pay Permaul
retroactively for August, September and October when his written contract was approved
and issued. He implicitly agreed to that contract term. The contract issued in January 2001,
so this is the date that the payment was due for
the prior services in August, September and
October of 2000. When OHCA failed to pay in
January 2001, it breached the implied agreement at that time and Permaul had three years,
or until January 2004 to file his action. Permaul’s cause of action did not accrue until payment was due and not paid. The breach of the
implied contract established the starting time
for the running of the Statute of Limitations.
Permaul’s action was not barred when filed.
Vol. 78 — No. 20 — 7/28/2007
Therefore, the trial court judgment entered
on the jury verdict is affirmed. AFFIRMED.
Opinion from Court of Civil Appeals, Division
II, by Rapp, C.J.; Fischer, P.J., and Wiseman, J.,
concur.
103,746 — United Parcel Service and Liberty Mutual Insurance Company, Petitioners,
v. Billy W. Shans and The Workers’ Compensation Court, Respondents. Proceeding to
Review an Order of a Three-Judge Panel of
The Workers’ Compensation Court, Hon. H.
Thomas Leonard, Trial Judge, affirming in part
and modifying in part the trial court’s decision
holding the Claimant sustained an injury arising out of and in the course of his employment
with Employer. The first issue this Court must
resolve is whether the date of injury to determine compensability in a cumulative trauma
action is the date of first awareness, as Claimant
argues, or the date of last exposure, as Employer contends. The date of injury to determine
compensability in a cumulative trauma case
is the date the claimant first becomes aware of
his or her injury. CNA Ins. Co. v. Ellis, 2006 OK
81, ¶9, 148 P.3d 874, 877. Here, the date of first
awareness occurred in November 2001. Under
the 2001 statutory language, Claimant’s degenerative arthritis is not expressly excluded as
a compensable injury. Employer next argues
the workers’ compensation court erred in not
designating a treating physician pursuant to
Section 17 and in considering the opinion of
Claimant’s medical expert, who was neither a
treating physician nor an independent medical
examiner. Employer further argues Section 17
provides the exclusive procedure for objecting to the treating physician’s opinion. This
Court finds Rush Truck Center/OKC v. Watson,
2007 OK CIV APP 37, ___ P.3d ___ dispositive
of Employer’s argument. The Court of Civil
Appeals in Watson held that, in evaluating permanent partial disability cases under Section
17(A), the trial court should allow the party
objecting to the treating physician’s opinion to
present its own medical opinion. Id. at ¶8, ___
P.3d ___. This Court finds there is competent
evidence to support the workers’ compensation court’s determination that Claimant
sustained a compensable work-related injury.
SUSTAINED. Opinion from Court of Civil
Appeals, Division II, by Rapp, C.J.; Fisher, P.J.,
and Wiseman, J., concur.
Vol. 78 — No. 20 — 7/28/2007
103,445 — In the Matter of the Adoption of
JAC. Josie Stanley-Reiter and Putnam Ervin
Reiter, Petitioners/Appellees, v. James William
Cashner, Respondent/Appellant. Appeal from
the District Court of Cleveland County, Hon.
Stephen W. Bonner, Trial Judge, finding Cashner’s minor son eligible for adoption without
Cashner’s consent. Mother received primary
custody of the parties’ minor son, JAC, in the
divorce proceedings. Cashner was ordered to
pay $181.83 per month for child support pursuant to the Oklahoma Child Support Guidelines. Cashner admitted that he failed to make
any child support payments from February
through December of 2005 and January of 2006.
Cashner testified that he was unemployed in
February, March, April, May, June, and July
of 2005 and began receiving unemployment
compensation of $193 per week in February
2005. On February 25, 2006, after Mother and
Reiter filed the application to adopt JAC without Cashner’s consent, Cashner gave Mother
two checks, each for $181. The primary issue
on appeal is whether Cashner’s failure to support JAC was willful. The trial court found that
Cashner’s consent was not required for Reiter’s adoption of JAC under 10 O.S.2001 §75054.2(B). We conclude that Mother and Reiter
presented clear and convincing evidence that
Cashner failed to pay his child support obligation twelve consecutive months out of the last
fourteen months that immediately preceded
Mother’s and Reiter’s filing of a petition for
adoption of JAC. For at least twelve months,
both while unemployed and then after becoming employed, Cashner chose to pay nothing
to fulfill his court-ordered support obligation
for JAC. There is not much question that, on
the record before us, Cashner had the ability to
make a meaningful contribution to JAC’s support but did not attempt to do so, which the
trial court found. With evidence of his financial
ability to pay support and of the animosity
between Mother and Cashner, the trial court’s
conclusion that Cashner’s failure to pay was
willful was supported by clear and convincing
evidence. The trial court’s decision to allow the
stepparent adoption to proceed without the
consent of Cashner is supported by clear and
convincing evidence. Accordingly, the order of
the trial court is affirmed. AFFIRMED. Opinion from the Court of Civil Appeals, Division
II, by Wiseman, J.; Fischer, P.J., concurs, and
Rapp, C.J., concurs in result.
1893
103,679 — Duncan Regional Hospital (Own
Risk #19417), Petitioner, v. Cynthia Chambliss and The Workers’ Compensation Court,
Respondents. Appeal from an order of a threejudge panel of the Workers’ Compensation
Court, Hon. Cherri Farrar, Trial Judge, which
affirmed a decision of the trial court in awarding temporary total disability (TTD) benefits
to Claimant. Claimant was terminated from
her employment with Employer on June 6,
2005. A trial was held on April 11, 2006. The
only issue before the trial court was Claimant’s
request for back pay of TTD from the date of
her termination, or, in the alternative, back pay
of TTD from the date of Claimant’s medical
evaluation on September 6, 2005, until temporary benefits were initiated on March 2, 2006.
At trial, Employer claimed that TTD benefits
should be terminated because Claimant had
been released by a doctor to light duty work
and Employer claimed it was under no duty to
provide light duty because it had terminated
Claimant’s employment for cause. The trial
court found that on May 4, 2005, Claimant
suffered an accidental personal injury to her
right hand, arm, shoulder and neck arising out
of and in the course of her employment with
Employer. The trial court denied Employer’s
termination for cause defense but also partially
denied Claimant’s request for TTD benefits.
The court granted TTD benefits from September 6, 2005, the date on which a doctor’s report
verified her to be temporarily totally disabled,
to March 2, 2006, the date on which Employer
voluntarily began paying TTD benefits. There
was conflicting evidence on the issue of whether Claimant acted in the manner claimed by
Employer in terminating her for cause. When
there is conflicting evidence, the determination of whom the trial court should believe
is for the trial court. If the trial court believed
Claimant’s testimony over Employer’s, we do
not have the power to disturb that conclusion.
We conclude that the decision of the Workers’
Compensation Court is supported by competent evidence on which the court could find
that Claimant did not act in a manner that
justified terminating her for cause. Finding
no reversible error, we sustain the three-judge
panel’s order. SUSTAINED. Opinion from the
Court of Civil Appeals, Division II, by Wiseman,
J.; Rapp, C.J., and Fischer, P.J., concur.
102,291 — In re the Marriage of Christopher Glenn George, II, Petitioner/Appellant,
1894
v. Andrea Nichole George, Respondent, Debra
Lira, Intervenor/Appellee. Appeal from Order
of the District Court of McClain County, Hon.
Noah Ewing, Trial Judge. Appellant Christopher George appeals from the Trial Court’s
judgment granting Appellee Debra Lira grandparental visitation. The Trial Court lacked
jurisdiction to hear Debra Lira’s motion for
grandparental visitation. Consequently, the
Trial Court’s order granting visitation must
be reversed. REVERSED. Opinion from Court
of Civil Appeals, Division II, by Fischer, P.J.;
Rapp, C.J., and Wiseman, J., concur.
102,921 — James McDonald and Delia McDonald, Plaintiffs/Appellees, v. Chad Weatherford,
J.D. Weatherford d/b/a J.D. Weatherford Real
Estate, and Ron Williams, Defendants/Appellants. Appeal from Order of the District Court
of Choctaw County, Hon. Don Ed Payne, Trial
Judge. Chad Weatherford, J.D. Weatherford,
doing business as J.D. Weatherford Real Estate,
and Ron Williams appeal from the Trial Court’s
denial of their request for attorney fees. The
sole issue on appeal is whether the Appellants
were prevailing parties in a suit to recover on a
contract related to the sale of goods as contemplated by 12 O.S. Supp. 2002 §936. Because the
Weatherfords have not filed a brief on appeal,
we dismiss their appeal without considering
it and limit our review to those issues raised
by Williams on appeal. The Trial Court’s order
denying attorney fees clearly establishes that
the gravamen of the McDonalds’ claim, as
tried, sounded in tort, not contract. There is no
other evidence in the record on appeal contradicting the Trial Court’s determination that the
McDonalds’ claim sounded in tort. Williams
has not submitted, and we have not found, any
legal precedent authorizing section 936 attorney fees based on the nature of the defense
asserted rather than the nature of the claim
tried. DISMISSED IN PART AND AFFIRMED
IN PART PURSUANT TO RULE 1.202(d) & (e).
II, by Fischer, P.J.; Rapp C.J., and Wiseman, J.,
concur.
104,252 — Wrangler/VF Jeanswear, Own
Risk, Insurance Carrier, Petitioners, v. Christina Bramlett and The Workers’ Compensation
Court, Respondents. Proceeding to Review an
Order of a Three-Judge Panel of The Workers’
Compensation Court, Hon. C. Eugene Prigmore, Trial Judge. The Petitioners, Wrangler/
Vol. 78 — No. 20 — 7/28/2007
VF Jeanswear (Employer) and Own Risk Insurance Carrier, appeal an order of the Worker’s Compensation Court Three-Judge Panel
(Panel) affirming a trial court decision in favor
of Christina Bramlett (Claimant) which adjudicated her as a permanently totally disabled
(PTD) person as a result of a combination of
previous injuries. Claimant, in December 2003,
filed four separate claims, but pursued only
three of them. These claims alleged cumulative trauma injury with each having the same
date of last exposure, November 14, 2003. Each
claim was given a separate case number and
assigned to different judges. Employer moved
for consolidation and the cases were consolidated “for all purposes” to the lowest case
number. The consolidated case was submitted
to the court. After a February 10, 2005 hearing,
the trial court entered an order finding Claimant to have suffered cumulative trauma workrelated injury, with a specific injury given
to each case number, and with a last date of
exposure of November 14, 2003. This order
was not appealed. Claimant then filed for
permanent total disability (PTD), claiming to
qualify as a previously impaired person based
upon the combination of the injuries adjudicated as occurring on November 14, 2003.
Employer objected and sought dismissal of the
PTD action. Employer maintains that previous
injuries are not subject to combination, for the
reason that (1) they shared the same date of
last exposure, and (2) the adjudication of the
claims was consolidated into one case. The
trial court combined the injuries and awarded
PTD benefits. Employer appealed the trial
court decision to the Panel, which affirmed.
Employer seeks to treat the original PPD order,
finding a set of cumulative trauma injuries
with a common last date of exposure, as one
establishing a single injury, and thus leaving
nothing to combine. By doing so, Employer is
trying to avoid the language of 85 O.S. 2001,
§171. Claimant meets the definition under
Section 171 to qualify for consideration of
claim for PTD benefits. Whether she is PTD is
a question of fact determined by the Workers’
Compensation Court and there is competent
evidence in the record to support the decision below. The decision of the Three-Judge
Panel of the Worker’s Compensation Court is
sustained. SUSTAINED. Opinion from Court
of civil Appeals, Division II, by Rapp, C.J.;
Fischer, P.J., and Wiseman, J., concur.
Vol. 78 — No. 20 — 7/28/2007
104,145 — ESS America, and Zurich American Insurance Company, Petitioners, v. Vickie
Marie Stewart, and the Workers’ Compensation Court, Respondents. Proceeding to Review
an Order of the Workers’ Compensation Court,
Hon. Clarence Kent Eldridge, Trial Judge, finding Claimant sustained 30 percent permanent
partial disability to her right shoulder. This
Court finds the workers’ compensation court
did not err in considering the medical report of
Claimant’s medical expert who was neither the
treating physician nor an independent medical
examiner. The workers’ compensation court’s
order is supported by competent evidence and
is sustained. SUSTAINED. Opinion from Court
of Civil Appeals, Division II, by Rapp, C.J.;
Fischer, P.J., and Wiseman, J., concur.
103,885 — Eric Brown, Plaintiff/Appellant,
v. The Oklahoma Department of Corrections,
State of Oklahoma, Defendant/Appellee.
Appeal from an order of the District Court of
Oklahoma County, Hon. Patricia G. Parrish,
Trial Judge, granting summary judgment in
favor of Defendant, the Oklahoma Department
of Corrections (DOC). Plaintiff, Eric Brown,
was an inmate of the DOC facility near Sulphur, Oklahoma, being transported as part
of a DOC work detail to a work site to clear
trash and debris from the Chickasaw Turnpike
right-of-way. The DOC employee driving the
vehicle in which Brown was riding made a Uturn from the roadway shoulder and collided
with an oncoming vehicle, injuring Brown.
Brown filed a timely Notice of Claim against
DOC under the Governmental Tort Claims
Act (GTCA), 51 O.S.2001 & Supp. 2006 §§151
through 200, and in due course the claim was
denied. Brown filed a petition for personal
injuries from this accident against DOC. DOC
sought summary disposition of Brown’s claims
on the premise that the GTCA exempts political
subdivisions like DOC from tort claims arising
out of the “[p]rovision, equipping, operation
or maintenance of any prison, jail or correctional facility.” 51 O.S.2001 §155(24). The trial
court sustained DOC’s motion for summary
judgment and entered judgment for DOC on
Brown’s claims. We find that the trial court
was correct in granting summary disposition
of Brown’s claim in favor of DOC because the
claim is barred by §155(24)’s exemption from
liability for acts performed in the operation of
a penal institution. AFFIRMED. Opinion from
the Court of Civil Appeals, Division II, by
1895
Wiseman, J.; Fischer, P.J., concurs, and Rapp,
C.J., dissents.
103,017 — Lauri F. Lackey, Petitioner/Appellant, v. Jay C. Lackey, Respondent/Appellee.
Appeal from an order of the District Court of
Oklahoma County, Hon. Geary L. Walke, Trial
Judge, terminating joint custody and awarding custody to Father, Jay C. Lackey. Following
their divorce, the parties shared joint custody
of their minor daughter. Mother, Lauri F. Lackey, filed a motion to modify custody in which
she requested termination of the joint custody
plan, award of custody to her, and suspension of Father’s visitation rights. Father filed
a cross-motion to modify custody. The trial
court terminated the joint custody plan and
awarded custody to Father. Given the hostility
and uncooperative behavior between the parents, we find that the trial court did not abuse
its discretion when it terminated joint custody.
The record also contains ample evidence supporting the award of primary custody to Father
as being in the child’s best interests, including
evidence indicating that Father would be more
likely to allow the child to have frequent and
continuing contact with Mother. AFFIRMED.
Opinion from the Court of Civil Appeals, Division II, by Wiseman, J.; Rapp, C.J., and Fischer,
P.J., concur.
103,079 — John R. Bauer, Plaintiff/Appellant,
v. Joel Kremer, Defendant/Appellee. Appeal
from an Order the District Court of Tulsa
County, Hon. David C. Youll, Trial Judge. John
R. Bauer seeks review of an order of the Trial
Court denying Bauer’s Motion for New Trial.
The Trial Court’s decision in this case is fully
supported by competent evidence. Further,
the Trial Court’s determination is not against
the clear weight of the evidence. Finding no
reversible error, we affirm the Trial Court’s
judgment pursuant to Oklahoma Supreme
Court Rule 1.202(e), 12 O.S.2001, ch. 15, app.
1. AFFIRMED PURSUANT TO RULE 1.202(e).
II, by Fischer, P.J.; Rapp, C.J., and Wiseman, J.,
concur.
102,719 — Wayne Trobee, Plaintiff/Appellant, v. Phillip Clifton and The Estate of Dale
Wright, deceased, Defendants/Appellees, and
Spirit Bank, N.A., Defendant. Appeal from the
1896
District Court of Creek County, Hon. Douglas
W. Golden, Trial Judge, from judgment after a
non-jury trial finding that the Estate of Dale
Wright had an enforceable mortgage against
Phillip Clifton’s real property. As the party
seeking to invalidate the Wright note and
mortgage, Trobee bears the burden of showing the absence of consideration. 15 O.S.2001
§115. “A plea of want of consideration amounts
to a contention that the instrument did not
become a valid obligation in the first place.”
Mercury Inv. Co. v. F.W. Woolworth Co., 1985
OK 38 at ¶22, 706 P.2d at 533. Trobee proved
at trial that there was no consideration for the
note and mortgage given by Clifton to Wright.
The parol evidence rule excludes Clifton’s
testimony offered to show that the note and
mortgage were given to secure an oral, collateral contract between Wright and Clifton
regarding payment for future legal services.
Consequently, the note and mortgage given by
Clifton in favor of Wright are void, and Trial
Court erred in finding the Wright note and
mortgage to be valid enforceable instruments.
That part of the Trial Court’s September 28,
2005, Journal Entry of Judgment is, therefore,
reversed. No party appealed the portions of
that Journal Entry granting a judgment to
Trobee against Clifton in the amount of $6,900
and a judgment in favor of the Wright Estate
against Clifton in the amount of $6,102.50.
Those portions of the Trial Court’s judgment,
therefore, remain undisturbed by this decision.
AFFIRMED IN PART AND REVERSED IN
PART. Opinion from Court of Civil Appeals,
Division II, by Fischer, P.J.; Rapp, C.J., and
Wiseman, J., concur.
103,326 — In re: Petition for Expungement.
Jimmy Real Harmon, Petitioner/Appellee, v.
State of Oklahoma ex rel. Department of Public
Safety, Respondent/Appellant. Appeal from
an order of the District Court of Muskogee
County, Hon. A. Carl Robinson, Trial Judge,
expunging records pertaining to misdemeanor
convictions against Jimmy Real Harmon that
occurred more than ten years ago. Harmon was
arrested on December 17, 1994, in Muskogee
County, Oklahoma, for driving under the influence (DUI) and leaving the scene of a property
damage accident. Harmon subsequently pled
guilty to an amended charge of reckless driving and either leaving the scene of a property
damage accident or failure to stop after striking an unattended vehicle. In the more than
ten years following his arrest, Harmon has not
Vol. 78 — No. 20 — 7/28/2007
been convicted of any felony or misdemeanor
offenses. In a petition before the district court,
he sought, pursuant to 22 O.S. Supp. 2006 §§18
and 19, to have all the records pertaining to
the arrest and conviction expunged. DPS is
the only agency that objected to his request for
expungement. DPS filed a motion to dismiss,
alleging that the district court lacked subject
matter jurisdiction to issue an order expunging DPS’ civil implied consent and/or driving records. The trial court denied the motion
and ordered that all records pertaining to the
arrest and conviction other than basic identifying information be expunged and sealed. We
find that the trial court did have subject matter jurisdiction to expunge Harmon’s records.
Accordingly, denying DPS’ motion to dismiss
was not error. Harmon showed the trial court
that he met all of the requirements of 22 O.S.
Supp. §2006 18(7). His original offense was a
misdemeanor; he has not been convicted of any
other misdemeanors or felonies since the original crime; he currently has no other criminal
charges pending against him; and more than
ten years have passed since his original conviction. AFFIRMED. Opinion from the Court
of Civil Appeals, Division II, by Wiseman, J.;
Rapp, C.J., and Fischer, P.J., concur.
102,997 — John Jackson, Plaintiff/Appellee, v. Autumn Pittman, Defendant/Appellant.
Appeal from Order of the District Court of
Tulsa County, Hon. C. Michael Zacharias, Trial
Judge. The sole issue on appeal in this paternity action is whether the Trial Court erred
in awarding attorney fees to Father under the
exception to the “American Rule” recognized
by the Oklahoma Supreme Court in City Nat’l
Bank & Trust Co. v. Owens, 1977 OK 86, 565
P.2d 4. We review this award of attorney fees
and litigation expenses for abuse of discretion.
Green Bay Packaging, Inc., v. Preferred Packaging,
Inc., 1996 OK 121, ¶32, 932 P.2d 1091, 1097.
Here, there was no evidentiary hearing on
Father’s attorney fee request, just a “running
narration” from Father’s counsel wherein he
described Mother’s conduct and attributed
improper motives to her. Lawyers’ arguments
are not evidence. An advocate’s “tantalizing
suggestions regarding the existence of facts”
are not admissible proof. State v. Torres, 2004
OK 12, ¶18, 87 P.3d 572, 582. Attorney fees,
whether they are to be paid by the client or
the opposing party pursuant to statute or an
equitable theory of fee-shifting, must in all
Vol. 78 — No. 20 — 7/28/2007
cases be reasonable. See Morgan v. Galilean
Health Enters., Inc., 1998 OK 130, ¶14, 977 P.2d
357, 364. Therefore, “permissible recovery must
be set upon and supported by evidence presented in
an adversary proceeding, in which the facts and
computation upon which the trial court rests
its determination are set forth in the record with
a high degree of specificity.” Id. at ¶15, 977 P.2d
at 364 (footnotes omitted). With no evidentiary hearing and no specific findings of the
Trial Court, we are unable to determine which
expenses, as reflected on counsel’s statement of
account and time sheets, the Trial Court found
to be directly related to vexatious or oppressive conduct by Mother. Gibbs v. Easa, 1998 OK
55, ¶14, 998 P.2d 583, 587. On appeal from an
equity-based decision, “an appellate court cannot exercise first-instance cognizance by making original findings of fact.” Hedges v. Hedges,
2002 OK 92, ¶23, 66 P.3d 364, 372. “Whenever
necessary findings are absent, the cause must
be remanded with directions that they be
made.” Id. REVERSED AND REMANDED
WITH INSTRUCTIONS. Opinion from Court
of Civil Appeals, Division II, by Fischer, P.J.;
Rapp, C.J., and Wiseman, J., concur.
103,937 — Michelin North America, Inc. and
Own Risk, Petitioners, v. Amiegene (“Amy”)
Kemp and The Workers’ Compensation Court,
Respondents. Proceeding to Review an Order
of a Three-Judge Panel of The Workers’ Compensation Court, Hon. Kenton W. Fulton, Trial
Judge, which affirmed the Trial Court’s order
awarding temporary total disability (TTD)
benefits to Worker Amy Kemp for an admitted job-related injury. Employer seeks to avoid
the TTD award by arguing that “Courts have
consistently ruled that employers have no
continuing obligation to offer light-duty work
to retirees.” (Emphasis added.) It then asserts
that Worker’ “chose her own fate by retiring.”
In support of this assertion, Employer cites
Ameriresource Group, Inc. v. Alexander, 2005 OK
CIV APP 68, 120 P.3d 901, Smith v. Millwood
Schools, 2003 OK CIV APP 41, 90 P.3d 564, and
Tubbs v. Oklahoma Tax Comm’n, 2001 OK CIV
APP 97, 28 P.3d 625, claiming that these cases
are directly on point and that the Court below
“erred as a matter of law when it failed to follow this precedent.” First, all of Employer’s
cited cases are distinguishable. Second, and
most importantly, none of the cases cited by
Employer involves the effect of a worker’s
separation from employment due to retirement.
The cases do not address whether 85 O.S.2001
1897
§45 is implicated when an employee exercises
the right to an earned benefit of employment
that has no relation to the workers’ compensation statutory scheme. See Ford Motor Co. v.
Moore, 2006 OK CIV APP 108, ¶6, 143 P.3d 223,
225 (wherein the Court “refuse[d] to penalize
[the Claimant] simply because he took steps
to assure his financial security”). Under the
facts and circumstances of this case, we find
that the Workers’ Compensation Court did
not err in awarding TTD benefits to Worker
for a period following her retirement. ORDER
Appeals, Division II, by Fischer, P.J.; Rapp, C.J.,
104,044 — In the Matter of J.J., an alleged
deprived child. The State of Oklahoma, Petitioner/Appellee, v. Keith Bean, Respondent/
Appellant. Appeal from Order of the District
Court of Comanche County, Hon. C. William Stratton, Trial Judge. Natural father seeks
review of an order of the Trial Court holding
that the State of Oklahoma had appropriate
emergency jurisdiction to adjudicate his child
deprived. The Trial Court found that an emergency existed because both parents were in
violation of a North Carolina Court’s custody
order. We hold that the Trial Court did not err
in finding that Mother’s violation of the North
Carolina Court’s order constituted an emergency sufficient to trigger its temporary emergency jurisdiction pursuant to the OUCCJEA.
We remand the case with instruction to the
Trial Court to revise the order to conform to 43
O.S.2001 §551-204(C) and to contact the District Court of Surry County, North Carolina, if
such contact has not already been established.
AFFIRMED AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH
THIS OPINION. Opinion from Court of Civil
Appeals, Division II, by Fischer, P.J.; Rapp, C.J.,
103,645 — In the Matter of J.C., and J.C.,
deprived children who are less than 18 years of
age. The State of Oklahoma, Petitioner/Appellee, vs. Kathy Shannon and Calvin Charles,
Respondents/Appellants. Appeal from Order
of the District Court of Tulsa County, Hon.
Carl Funderburk, Trial Judge. Biological parents appeal from the Trial Court’s termination
of their parental rights with respect to their
children JC and JC. Based on our review of the
record on appeal and applicable law, we affirm.
1898
The record on appeal establishes by clear and
convincing evidence that: (1) the Mother’s
parental rights to other children have been
previously terminated and that she has failed
to correct the conditions that precipitated those
terminations and (2) the Father’s incarceration justifies termination of his parental rights.
Further, the Father has failed to allege or demonstrate any legal error on the part of the Trial
Court. Accordingly, the Judgment of the Trial
Court is affirmed. AFFIRMED. Opinion from
Court of Civil Appeals, Division II, by Fischer,
P.J.; Wiseman, J., concurs, and Rapp, C.J.,
dissents.
(Division No. 3)
103,154 — Robert Henderson, Plaintiff/
Appellant, v. Board of County Commissioners
of Tulsa County, Tulsa County Public Facilities Authority, and Tyler Chase d.b.a. Yocham
Enterprises, Inc., Defendants, and Yocham
Enterprises, Inc., Appellee. Appeal from the
District Court of Tulsa County, Oklahoma.
Honorable Russell P. Haas, Trial Judge. Appeal
of a trial court order in a post-judgment proceeding which quashed an order requiring
Yocham Enterprises, Inc. to appear and give
information about its assets relating to a judgment in favor of Appellant against Defendant
“Tyler Chase individually and d.b.a., Yocham
Enterprises, Inc.” Appellant contends the trial
court erred in concluding he did not have a
judgment against Yocham Enterprises, Inc. and
thereby effectively vacated a judgment which
was more than two years old. HELD: Contrary to all of Appellant’s arguments, the trial
court did not vacate a judgment in his favor.
It merely correctly concluded that Yocham
Enterprises, Inc. was not a defendant in this
case and that it was not liable on the December 3, 2003 judgment. Appellant has cited no
authority demonstrating that adding a “d.b.a.”
designation to an individual defendant’s name
converts that action into a lawsuit against
both the individual and a separate legal entity
whose name follows the “d.b.a.” designation.
The trial court’s judgment ran only against
Tyler Chase, if at all. The trial court’s order is
AFFIRMED. Opinion by Adams, J.; Joplin, P.J.,
and Mitchell, V.C.J., concur.
103,156 — In the Matter of the Guardianship of Mary Marie Sweetin, an alleged incapacitated person, Fred P. Gilbert, Appellant,
v. Robert S. Post, Special Administrator of
Vol. 78 — No. 20 — 7/28/2007
the Estate of Mary Marie Sweetin, deceased,
Rogers County, Oklahoma. Honorable Terry
H. McBride, Trial Judge. Fred Gilbert appeals
trial court orders in this guardianship case
which denied him payment from the guardianship estate for a portion of the attorney
fees to which he claims entitlement under a
contract with the now-deceased ward, Mary
Marie Sweetin, for services in this case. The
appellee named in Gilbert’s Petition in Error,
Robert S. Post, the Special Administrator of
the Estate of Mary Marie Sweetin, contends he
is not a proper party to this appeal as he was
not a party to the guardianship case. We agree
and conclude Gilbert has therefore failed to
make any party a proper appellee. We therefore dismiss the appeal. DISMISSED. Opinion
by Adams, J.; Joplin, P.J., and Mitchell, V.C.J.,
concur.
103,207 — Barry E. Watts, Petitioner, v. City
of Tulsa (Own Risk #10435), and the Workers’
Compensation Court, Respondents. Proceeding to Review an Order of a Three-Judge Panel
of the Workers’ Compensation Court. Claimant seeks review of an order of a three-judge
panel of the Workers’ Compensation Court
which affirmed the trial court’s order denying
him benefits for an alleged injury to his hip
arising out of and in the course of his employment with Respondent City of Tulsa, Own
Risk (Employer). In this proceeding, Claimant asserts there is no competent evidence
to support denial of his claim. The reports
of Employer’s examining physicians and the
independent medical examiner are competent
and support the lower court’s order. SUSTAINED. Opinion by Joplin, P.J.; Adams, J.,
and Mitchell, V.C.J., concur.
103,383 — Eldorado Motors, Inc., Plaintiff/
Appellee, v. Dale Pound, Defendant/Appellant. Appeal from the District Court of Oklahoma County, Oklahoma. Honorable Carolyn R.
Ricks, Trial Judge. Appeal of a trial court order
which set aside a previous decision denying
an Application to Arbitrate filed by Eldorado
Motors, Inc. and granted that application. Noting the similarity between this case and Ditto v.
RE/MAX Preferred Properties, Inc., 1993 OK CIV
APP 152, 861 P.2d 1004, which involved the
same procedural scenario, the Court required
Pound to show cause why his appeal should
not be dismissed. Pound’s response to that
order attempts to distinguish Ditto by arguing that the trial court’s order setting aside its
Vol. 78 — No. 20 — 7/28/2007
previous order denying Eldorado’s arbitration
request is an order granting a new trial which
is an interlocutory order appealable by right
under 12 O.S.2001 §952(b)(2). However, that
was the precise situation presented in Ditto, in
which the Court concluded the appeal must
be dismissed because it was neither a final
order nor an interlocutory order appealable by
right. HELD: The trial court’s order here did
not grant a new trial in that it did nothing to
disturb a judgment or final order but merely
exercised the trial court’s power to alter, reconsider, revise, or rescind an interlocutory order
before a final order concluded the litigation.
The trial court order appealed by Pound was
not a judgment, final order, or an interlocutory
order appealable by right. Accordingly, the
appeal is DISMISSED. Opinion by Adams J.;
Joplin, P.J., and Mitchell, V.C.J., concur.
104,291 — E. W. Keller, Petitioner, v. Midwest
Drywall Company, Inc.; the Oklahoma Property & Casualty Guaranty Fund; and the Workers’ Compensation Court, Respondents. Proceeding to Review an Order of a Three-Judge
Panel of the Workers’ Compensation Court.
As in Tisdale v. Wheeler Brothers Grain Company,
Inc., 1979 OK 94, 599 P.2d 1104, the style of this
matter was altered to reflect the real party in
interest aggrieved by the order under review.
E. W. Keller seeks review of an order of the
Workers’ Compensation Court, affirmed on en
banc appeal, which refused his request to have
a previously awarded attorney fee commuted
to a lump sum to be paid immediately. HELD:
The Workers’ Compensation Court correctly
concluded that 85 O.S.Supp.1997 §30(C) and
(D), the statute in effect on the date the claimant was injured, required the continuation
of periodic payments at 20% of a claimant’s
weekly permanent total disability benefit until
the attorney fee award was completely paid.
When the attorney fee award became final,
Keller had a vested right to the payment of
the attorney fee award as provided in the
award, and that was not changed by the
claimant’s subsequent demise. Employer has
a vested right to pay the attorney fee award
in accordance with the order of the Workers’
Compensation Court making the award and as
provided in the statute in effect on the date of
the claimant’s injury. The order of the Workers’
Compensation Court is not contrary to law as
argued and therefore is SUSTAINED. Opinion
by Adams, J.; Mitchell, V.C.J., concurs, and Joplin, P.J., concurs in result.
1899
104,313 — Lora Ann Miller, Plaintiff/Appellant, v. David Grace, Inc., David Grace, individually, and First Choice Management,
Defendants/Appellees, and Satca, Ltd., Parent
Company of River Chase Apartment, and First
Choice Properties, Inc., Defendants. Appeal
Oklahoma. Honorable Patricia G. Parrish, Trial
Judge. Plaintiff Lora Ann Miller appeals separate trial court orders granting summary judgment to Defendant/Appellee First Choice Management (FCM) and to Defendants/Appellees
David Grace and David Grace, Inc. (collectively,
Grace), three of the five defendants in Miller’s
negligence action seeking damages for personal injuries she alleged she sustained when
she fell from her second-story apartment’s balcony. We affirm the judgment in favor of FCM
because Miller has not presented any basis for
reversal by this Court. However, we reverse
the judgment in favor of Grace because summary adjudication was not appropriate on this
record, i.e., Grace failed to demonstrate that it
is an owner, occupier or possessor of the apartments or entitled to a “no duty” defense based
on an open and obvious danger. In all other
respects the trial court’s judgment is affirmed.
AFFIRMED IN PART, REVERSED IN PART
AND REMANDED. Opinion by Adams, J.;
Joplin, P.J., and Mitchell, V.C.J., concur.
104,315 — April Lashon Todd, Petitioner,
v. Metropolitan Tulsa Transit Authority, Metropolitan Tulsa Transit Authority (Own Risk
#16570), and the Workers’ Compensation
Court, Respondents. Proceeding to Review an
Order of the Workers’ Compensation Court.
Honorable Richard L. Blanchard, Judge. Claimant seeks review of the trial court’s order denying her benefits for cumulative trauma injuries
to her hands and arms causally related to her
employment with Employer. In this proceeding, Claimant complains the trial court erred
as a matter of both fact and law in denying
her claim given her consistent, credible and
uncontroverted lay testimony and medical evidence establishing occurrence of compensable
cumulative trauma injuries arising out of and
in the course of her employment. It is clear the
physicians for both Claimant and Employer
regarded Claimant’s complaints of hand and
wrist pain as indicative of carpal tunnel syndrome. Employer’s physician found Claimant indeed suffered carpal tunnel syndrome
bilaterally, that the carpal tunnel syndrome
was the injury causally related to the employ1900
ment, and that Claimant required additional
orthopedic treatment to her hands and wrists,
including an EMG test. Claimant’s physician
reported symptoms consistent with carpal tunnel syndrome, but upon review of the EMG
test results, discerned “no evidence of carpal
tunnel syndrome.” The medical reports of the
physicians were competent for admission into
evidence, and in the exercise of its fact finding
function and its discretionary evaluation of
the probative value of the medical evidence,
the lower court chose to accord the opinion of
Claimant’s physician controlling weight. The
lower court did not abuse its discretion in this
particular, and report of Claimant’s physician
is competent to support denial of the claim
for the alleged cumulative trauma injuries
to Claimant’s hands and arms. SUSTAINED.
Opinion by Joplin, P.J.; Adams, J., and Mitchell,
V.C.J., concur.
K.M.B. and D.W.B., Jr., Minor Children, Marcia Marie Bruton Copley, Appellant, v. David
Lee Bruton and Janice Clara Bruton, Appellees. Appeal from the District Court of Cotton County, Oklahoma. Honorable David A.
Barnett, Trial Judge. Marcia Copley (Mother)
appeals a trial court order which expressly
terminated her rights as a parent to K.M.B. and
D.W.B., Jr., and also determined the children
were eligible for adoption without her consent.
Because we agree that the trial court committed
fundamental error in not appointing an attorney to represent the interests of the children,
we reverse and remand the case for further
proceedings. Mother’s request for attorney
fees is denied. REVERSED AND REMANDED.
Opinion by Adams, J.; Joplin, P.J., and Mitchell,
V.C.J., concur.
(Division No. 4)
103,481 — Sonny Lauren Harmon, Plaintiff/
Appellant, vs. Glynn Booher, Warden, JLCC;
and State of Oklahoma ex rel. Department of
Corrections, Defendants/Appellees. Appeal
Hon. Daniel L. Owens, Trial Judge, dismissing
the plaintiff’s (Inmate) petition and entering
judgment in favor of Defendants. Inmate filed
this action requiring the Department of Corrections and the warden to return a number
of personal property items. We find Inmate
exhausted the Department’s internal administrative remedies. Nevertheless, dismissal
Vol. 78 — No. 20 — 7/28/2007
was proper because Inmate failed to give
proper Governmental Tort Claims Act notice
and failed to state proper claims based on
tort, mandamus, or 42 U.S.C. §1983. However,
Inmate is entitled to an opportunity to amend
his petition and possibly to add additional parties. AFFIRMED AND REMANDED. Opinion
by Gabbard, P.J.; Goodman, J., concurs, and
Reif, J., specially concurs.
103,757 — Super Clean Full Service Car
Wash, Villanova Insurance Co., and/or Oklahoma Property and Casualty Insurance Guaranty Association, Petitioners, v. Michael Hayes
and Workers’ Compensation Court, Respondents. Proceeding to Review an Order of a
Three-Judge Panel of the Workers’ Compensation Court, Hon. Susan Witt Conyers, Trial
Judge. This case concerns the trial court’s
determination of a credit due Employer and
Insurance Carrier for the overpayment of temporary total disability benefits. Employer and
Insurance Carrier initially sought credit for
the entire amount of temporary total disability
based on the undisputed fact that Claimant
earned commissions as a realtor after obtaining his license in the summer of 2001. The
trial court denied this request, but did grant a
credit for $45,109.92, the amount of the commissions earned while Claimant was receiving
temporary total disability. The trial court limited the credit to the amount of commissions
earned, finding they resulted from “sporadic
work performed” and not because Claimant
engaged in gainful employment for the entire
TTD period. Following an unsuccessful appeal
before a three-judge panel, Employer and
Insurance Carrier filed this review proceeding. We find no error by the three-judge panel
in affirming the trial court’s order limiting
the overpayment credit to the commissions
earned. SUSTAINED. Opinion from Court of
Civil Appeals, Division IV, by Reif, J.; Gabbard,
P.J., and Goodman, J., concur.
103,063 — In the Matter of the Estate of Walter Kinsley Jackson, Deceased. Johnny C. Benjamin, Personal Representative of the Estate
of Walter Kinsley Jackson, Deceased, and in
his individual capacity, Plaintiff/Appellant,
v. Robena J. Butler and Harris Butler, in their
capacity as co-trustees of the Jackson Living
Trust dated July 7, 1995, and amended November 1, 1996, and in their individual capacities,
Defendants/Appellees. Appeal from the DisVol. 78 — No. 20 — 7/28/2007
trict Court of Oklahoma County, Hon. Brian
H. Upp, Trial Judge. This appeal arises from
a probate proceeding brought by Johnnie C.
Benjamin for intestate administration of the
estate of Walter Kinsley Jackson. Mr. Benjamin
sought and received letters of administration
based on his claim that he was the son and
only heir of decedent Jackson. In the course
of administration, Mr. Benjamin brought an
ancillary action against the trustees of a trust
that decedent Jackson and his wife (who had
predeceased him) had established in their
lifetimes. Mr. Benjamin contended he was a
pretermitted child of Mr. Jackson vis-à-vis the
trust, and sought recovery of the trust assets to
satisfy his intestate share of the estate. For purposes of this appeal, we assume that Mr. Benjamin was the son of decedent Jackson. Even
so, we fail to see how the pretermitted heir
statute, 84 O.S.2001 §132, has any application
to this case whatsoever. On its face, section 132
applies only to wills. Nothing in the language
in section 132 even remotely suggests that it
applies to trusts. AFFIRMED. Opinion from
Court of Civil Appeals, Division IV, by Reif, J.;
Gabbard, P.J., and Goodman, J., concur.
104,266 — In the Matter of E.S., a deprived
child. Jennifer S., Appellant, v. The State of
Oklahoma, Appellee. Appeal from the District Court of Oklahoma County, Hon. Lisa K.
Hammond, Trial Judge. Jennifer S. (Mother)
appeals the trial court’s January 9, 2007, order
terminating her parental rights in her minor
child, E.S., following a jury trial. State sought
termination of Mother’s rights pursuant to
10 O.S.2001, §7006-1.1(A)(5), alleging Mother
had failed to correct the conditions which
led to E.S.’ deprived status. Based upon our
review of the facts and applicable law, we
affirm. AFFIRMED. Opinion from Court of
Civil Appeals, Division IV, by Goodman, J.;
Gabbard, P.J., and Reif, J., concur.
102,450 — In the Matter of the Guardianship
of Lucille M. Parker, a partially incapacitated
person. Johnny Ray Parker, Special Guardian, Petitioner/Appellee, vs. Goldie Demory,
Appellant. Appeal from Order of the District
Court of Oklahoma County, Hon. Brian H.
Upp, Trial Judge, denying motion for new
trial by Appellant. Appellant moved for new
trial after the trial court appointed Appellant’s
brother as special guardian of Appellant and
Appellee’s mother, and then terminated the
1901
guardianship proceeding after the mother
died. The trial court correctly concluded that
the issues raised by Appellant in her new
trial motion were moot after the mother’s
death. The rights and powers of a guardian
are terminated by the death of the ward, and,
indisputably, none of the ward’s assets passed
through the special guardianship. Continuing
with Appellant’s challenge to appointment of
Appellee as their mother’s special guardian
would have been a meaningless act. Appellant also failed to demonstrate error or abuse
of discretion on any other ground which she
asserted, including her claim of error in the
trial court’s failure to require Appellant to file a
report in conjunction with termination, and the
trial court’s failure to assess sanctions against
Appellee for alleged misrepresentations to
the court. AFFIRMED. Opinion from Court
of Civil Appeals, Division IV, by Gabbard P.J.;
Goodman, J., and Reif, J., concur.
104,091 — Roland and Jeanie Nipps; Robert and Melinda Lindsey, individually and as
parents and next friends for Steven Lindsey,
a minor; Angela Waasdorp; and Lisa Rhymes,
Plaintiffs/Appellants, v. City of Broken Arrow,
Defendant/Appellee, and Gary Kolpek, and
Alice Hinsley a/k/a Alice Hensley, Defendants.
Appeal from the District Court of Tulsa County, Hon. Ronald L. Shaffer, Trial Judge, denying
Plaintiffs’ motion to reconsider the dismissal of
their tort claim against Defendant City. Some
Plaintiffs’ claims are not directed against City
and, therefore, dismissal was improper. Otherwise, dismissal was proper because: (1) some
claims were premature; (2) the Governmental
Tort Claims Act provides immunity for failure
to properly enforce an ordinance; and (3) the
Recreational Land Use Act provides immunity
for operation of a city park. AFFIRMED IN
PART AND REVERSED IN PART. Opinion
from Court of Civil Appeals, Division IV,
by Gabbard, P.J.; Goodman, J., and Reif, J.,
concur.
104,069 — Robert H. Stewart, Petitioner v.
Valor Telecommunications Enterprises, LLC;
New Hampshire Insurance Company, and The
Original Proceeding to Review an Order of
a Three-Judge Panel of the Workers’ Compensation Court, Hon. Cherri Farrar, Trial
Judge, vacating the workers’ compensation
trial court’s award of temporary total disability
and medical treatment benefits to Claimant.
There is competent evidence in the record to
1902
support the panel’s finding that Claimant’s
fall, in which he struck the floor of a customer’s office and injured himself, was the result
of a “tonic-clonic” seizure that was idiopathic
in nature; and that Claimant’s injury therefore
did not “arise out of” Claimant’s employment.
Claimant’s argument that the panel’s decision
means that he must meet a higher burden of
proof than required by law ignores the fact
that this Court must adhere to the any-competent-evidence standard of review. The panel’s
decision is SUSTAINED. Opinion from Court
of Civil Appeals, Division IV, by Gabbard, P.J.;
102,709 — Linda Dickinson, Petitioner/
Appellant, v. Norrell Staffing Services/ Riscorp
and/or Traveling Nationwide Temps, Inc.,
American Interstate Insurance Company, and
The Workers’ Compensation Court, Respondents/Appellees. Proceeding to Review an
Order of the Workers’ Compensation Court,
Hon. Kenton W. Fulton, Trial Judge. Claimant Linda Dickinson seeks review of the trial
court’s October 4, 2005, order denying her
additional medical benefits for an earlier jobrelated injury. Based upon our review of the
facts and applicable law, we sustain the order
under review. SUSTAINED. Opinion from
Court of Civil Appeals, Division IV, by Goodman, J.; Gabbard, P.J., and Reif, J., concur.
104,246 — Thornton Drilling Company, Zurich-American Insurance, Petitioners/ Appellants, v. Stanley J. Dietz and the Workers’
Compensation Court, Respondents/Appellees. Proceeding to Review an Order of the
Workers’ Compensation Court, Hon. H. Thomas Leonard, Trial Judge. Employer Thornton
Drilling Company seeks review of the trial
court’s January 10, 2007, order finding Claimant Stanley Dietz sustained a change of condition for the worse following a prior adjudicated work-related injury. After our review of
the facts and applicable law, we sustain the
order. SUSTAINED. Opinion from Court of
Civil Appeals, Division IV, by Goodman, J.;
Gabbard, P.J., and Reif, J., concur.
103,333 — Evans Home Furnishings and
Mid Continent Casualty Company, Petitioners,
v. Norma Louise “Pat” Lewison, and Workers’
Compensation Court, Respondents. Proceeding to Review an Order of a Three-Judge Panel
Vol. 78 — No. 20 — 7/28/2007
of the Workers’ Compensation Court, Hon.
Ellen Edwards, Trial Judge. This case concerns
an order by a three-judge panel that reversed
the trial court’s order authorizing Claimant’s
relocation to a nursing home. The three-judge
panel concluded the trial court’s order was
contrary to law and against the clear weight
of the evidence. The three-judge panel ordered
Employer and Insurance Carrier to “continue
to provide claimant with care in a private
residential environment, including 24-hour
nursing care.” A decision of the three-judge
review panel of the Workers’ Compensation
Court may not be reversed on appeal if it is
supported by any competent evidence. In
reviewing the record, we find ample support
for the three-judge panel’s order in the evidence and inferences to be drawn therefrom.
Appeals, Division IV, by Reif, J.; Gabbard, P.J.
and Goodman, J., concur.
104,096 — John Stewart, Plaintiff/Appellant,
v. United Automobile Insurance Company,
Defendant/Appellee. Appeal from the District
Court of Tulsa County, Hon. Rebecca B. Nightingale, Trial Judge. This appeal arises from a
suit brought by John Stewart to recover damages he allegedly sustained in a motor vehicle
collision with Linda Pinkosky. In addition to
seeking damages from Ms. Pinkosky, Mr. Stewart sought to recover uninsured/underinsured
(UM) benefits from his insurer, United Automobile Insurance Company. United defended
Mr. Stewart’s claim on the ground that Mr.
Stewart rejected UM coverage. If the legislature had intended the offer form prescribed in
§3636(I) to be the exclusive means for rejecting
UM coverage, we believe the legislature would
have expressly said so. The Supreme Court
has stated: “All that is required by §3636 for
an effective rejection is a writing signed by the
named insured.” The written rejection in the
application signed by Mr. Stewart is “a writing
signed by the named insured” and, as such, is
an “effective rejection.” AFFIRMED. Opinion
from the Court of Civil Appeals, Division IV,
by Reif, J.; Gabbard, P.J., and Goodman, J.,
concur.
102,880 — In Re The Marriage Of: Rex Dean
Hutton, Petitioner/Appellant, v. Shawn Dell
Hutton (now Kelley), Respondent/Appellee.
Appeal from an Order of the District Court
of Tulsa County, Hon. C. Michael Zacharias,
Vol. 78 — No. 20 — 7/28/2007
Trial Judge, entering judgment against Father
and awarding custody of children to Mother
as a sanction for Father’s failure to comply
with discovery orders. The record reveals that
Father was given ample opportunity to comply
with discovery requests and had been ordered
to do so; that he was given notice of the
trial court’s intent to hear Mother’s sanctions
request at the trial; and that he was allowed to
participate in the trial, object to Mother’s evidence, and testify himself as to his children’s
best interests. The trial court did not abuse its
discretion. AFFIRMED. Opinion from Court
of Civil Appeals, Division IV, by Gabbard, P.J.;
104,192 — Raymond L. Broomhall, Petitioner, v. Goober Drilling Corp., Bituminous
Casualty, and The Workers’ Compensation
Court, Respondents. Proceeding to Review
an Order of a Three-Judge Panel of the Workers’ Compensation Court, Hon. Richard L.
Blanchard, Trial Judge, finding that Claimant
(1) had received an overpayment of temporary
total disability benefits, therefore entitling his
employer to a credit; (2) had not sustained
the percentage of permanent partial disability
which he claimed; and (3) was not entitled
to continuing medical maintenance. Competent evidence supports the court’s findings.
SUSTAINED. Opinion from the Court of
Civil Appeals, Division IV, by Gabbard, P.J.;
104,270 — Discover Bank (Discover Card) by
S.A. Discover Fin. Serv. LLC, Plaintiff/ Appellee, v. Rae S. Worsham, Defendant/Appellant. Appeal from the District Court of Tulsa
County, Hon. Russell P. Hass, Trial Judge.
Cardholder Rae S. Worsham appeals the trial
court’s January 3, 2007, order granting summary judgment to Discover Bank (Discover)
on its action to collect the balance owed it by
Cardholder after Cardholder’s default on her
agreement to pay. The appeal was assigned to
the accelerated docket pursuant to Oklahoma
Supreme Court Rule 1.36(a)(2), 12 O.S.2001
and Supp. 2003, ch. 15, app. 1. Based upon
our review of the facts and applicable law, we
affirm in part and reverse in part. AFFIRMED
IN PART, REVERSED IN PART. Opinion from
Court of Civil Appeals, Division IV, by Goodman, J.; Gabbard, P.J., and Reif, J., concur.
1903
103,030 — Martin Alan Vinyard, Plaintiff/
Appellant, v. Grace Kym Vinyard, now Seals,
Defendant/Appellee. Appeal from the District
Court of Kay County, Hon. Philip A. Ross,
Trial Judge. This appeal arises from postdecree proceedings to modify the child support obligation of Martin Vinyard (Father) for
his two daughters. The primary focus of these
proceedings has been the credit Father would
receive for social security disability benefits
paid to his daughters. Father contends that the
trial court erred in denying him any credit for
R.A.V.’s social security benefits and in using
the after-tax net amount of the social security
benefit, rather than the gross amount of the
benefit, in computing the credits awarded. We
conclude that the trial court erred in not giving Father credit for a portion of the benefits
paid to R.A.V. The arrearage adjudicated in
the July 5, 2005, journal entry accrued during
the minority of R.A.V., as did social security
benefits. Father should have received a credit
for an amount of R.A.V.’s benefits equal to half
of the $2,111.96 arrearage or $1,055.98. As a
consequence, the credit from E.L.V.’s retroactive benefits applicable to her “pending and
future medical needs” should be increased
by $1,055.98. We also conclude the trial court
erred in using the after-tax net amount of
both the retroactive and monthly benefits to
compute the credit due Father. In the case at
hand, the trial court should have given Father
credit for half of the arrearage from the social
security benefits paid to R.A.V., since both the
arrearage and the benefits accrued prior to
her majority. The trial court should have also
used the total or gross amount of both the retroactive and monthly benefits to compute the
credits due Father and any resulting liability.
REVERSED AND REMANDED WITH DIRECTIONS. Opinion from Court of Civil Appeals,
Division IV, by Reif, J.; Goodman, J., concurs,
and Gabbard, P.J., concurs in result.
103,867 — LeTicia Smedley, Plaintiff/Appellant, v. Corrections Corporation of America,
Defendant/Appellee. Appeal from the District Court of Tulsa County, Hon. Jefferson D.
Sellers, Trial Judge. This appeal arises from
a suit brought by LeTicia Smedley to recover
for legal wrongs she allegedly suffered while
in the custody of Corrections Corporation of
America (CCA). The legal wrongs she pleaded
are all based on Oklahoma law. CCA contested
Ms. Smedley’s right to recover for these state
1904
law wrongs in this suit, because she had previously attempted to hold CCA liable for the
same wrongs in a federal civil rights suit. Ms.
Smedley was unsuccessful on these wrongs in
federal court, because she did not plead the
state law wrongs until after the federal court
granted summary judgment on her civil rights
claim. The federal court denied her request to
add the state law claim because the request
was untimely and no explanation was offered
for her failure to timely amend. Both in the
trial court and here on appeal, Ms. Smedley
has argued that the federal court disposed of
her state law claim on a procedural ground,
rather than on the merits. The record presented
clearly demonstrates that Ms. Smedley’s federal complaint was filed more than one year
after the operative event of her incarceration
and, therefore, her theories of liability based
on assault and battery and false imprisonment are time-barred. The trial court properly
granted CCA summary judgment as to these
theories of liability. The record is equally clear,
however, that the federal complaint was filed
well before the two- year statute of limitation
expired on her theories of recovery for negligence and intentional infliction of emotional
distress. Accordingly, the trial court erred in
granting CCA summary judgment as to these
theories of recovery. In conclusion, we hold
that the federal court’s disposition of Ms.
Smedley’s civil rights suit did not preclude a
subsequent state law claim for wrongs based
on state law. AFFIRMED IN PART, REVERSED
IN PART AND REMANDED. Opinion from
Court of Civil Appeals, Division IV, by Reif, J.;
Gabbard, P.J., and Goodman, J., concur.
ORDERS DENYING REHEARING
(Division No. 1)
103,407 — David Earl Berry, Plaintiff/Appellant, v. Deborah Kay Berry, Defendant/Appellee. Plaintiff/Appellant’s Petition for Rehearing is DENIED.
103,725 — Mark Armstrong, Petitioner,
v. Branchcomb, Inc.; Commerce & Industry
Insurance Co.; and The Workers’ Compensation Court, Respondents. Respondent’s Petition for Rehearing is DENIED.
104,123 — Manpower and Insurance Company of the State of Pennsylvania, Petitioners,
v. Mary Rinehart and The Workers’ Compensa-
Vol. 78 — No. 20 — 7/28/2007
tion Court, Respondents. Petitioners’ Petition
for Rehearing is DENIED.
Plaintiff/Appellee’s Petition for Rehearing is
DENIED.
104,175 — In the Matter of the Adoption of L.N.L. and H.P.L., Minor Children.
Roger and May Spring, Petitioners/Appellants, v. William Curry Scott, Respondent/
Appellee. Respondent/Appellee’s Petition for
Rehearing is DENIED.
103,511 — Case & Associates Properties,
Inc., d/b/a Villa at Stonebridge Apartments,
Plaintiff/Appellee, v. Edward L. White and All
Occupants, Defendant/Appellant. Appellant’s
Petition for Rehearing is DENIED.
(Division No. 2)
Monday, June 25, 2007
104,025 — Gentiva Health Services, Inc., and
Hartford Insurance Company of the Midwest,
Insurance Carrier, Petitioners, v. Stella Patricia
Miller, and The Workers’ Compensation Court,
Respondents. The Petition for Rehearing filed
by Petitioners/Appellants is DENIED.
102,925 — Michael Merryfield, Plaintiff/
Appellant, vs. 9092 Cattle Company, Inc.,
Defendant/Appellee. Appellant Michael Merryfild’s Petition for Rehearing is DENIED.
Appellee 9092 Cattle Company, Inc.’s Motion
for Attorney Fees on Appeal is granted, and
the case is remanded to the trial court pursuant
to 12 O.S. Supp. 2004 § 696.4(c) for a determination of the amount.
J.A.C. Josie Stanley-Reiter and Putnam Ervin
Reiter, Petitioner/Appellees, vs. James William Cashner, Respondent/Appellant. Appellant James William Cashner’s Petition for
(Division No. 3)
102,692 — In the Matter of the Estate of
Gladys Floydean Moore Damron, deceased,
Teena Kay Hicks, Robert Lynn Moore, III,
Trinsa Dean McComas, Nicky Ross Moore,
Ricky Dane Moore, Melissa Ann Kasey, and
Larry Shane Moore, Plaintiffs/Appellees, v.
Nell Rozella Casstevens Heisch, Defendant/
Appellant. Appellant’s Petition for Rehearing
is DENIED.
103,256 — Ellen Buckner Shackelford, Plaintiff/Appellee, v. Oklahoma Department of
Corrections, ex rel. State of Oklahoma, Defendant/appellant, and Greg Province, in his
individual and official capacity, Defendant.
Vol. 78 — No. 20 — 7/28/2007
103,759 — O’Reilly Automotive Warehouse
and American Casualty Company of Reading,
PA., Petitioners, v. Sherri L. Rivers and the
Petitioners/Appellants’ Petition for Rehearing
is DENIED.
103,131 — Cathy Burch, Respondent/Appellee, v. State of Oklahoma, ex rel., Oklahoma
Department of Human Services, Petitioner/
Appellant. Appellant’s Petition for Rehearing
is DENIED.
103,133 — Sharyn K. Klepper, Respondent/
Appellee, v. State of Oklahoma, ex rel., Oklahoma Department of Human Services, Petitioner/Appellant. Appellant’s Petition for
103,134 — Jerry J. Portwood, Respondent/
103,135 — Linda Williams, Respondent/
103,136 — Beverly J. Davis, Respondent/
(Division No. 4)
103,852 — O’ Reilly Auto Parts and Indemnity Insurance Company of North America,
Petitioners, v. Teena Roberts and The Workers’
Compensation Court, Respondent. Accordingly, Petitioners’ Petition for Rehearing is
DENIED.
1905
American Idol – OBA Style
An Annual Meeting Event
Wednesday, Nov. 7, 2007 • 9 – 11 p.m.
•Perform one song to wow celebrity judges
•Prizes for first, second & third places
•Limited to 15 individuals or groups
•Groups must include at least 1 OBA member
•Participants provide background music on CD
•OBA performers must register for the meeting
Fill out the form below. Mail to: American Idol – OBA Style, OBA, P.O. Box 53036, OKC 73152
Fax to: 405.416.7001
Scan & e-mail to: [email protected]
Name of act: ________________________________________________________
Your Name: _________________________________________________________
OBA #: ____________________________________________________________
E-mail address: ______________________________________________________
If group, names of other performers:
__________________________________________ OBA # (if applicable) ________
Questions: E-mail [email protected]
1906
Vol. 78 — No. 20 — 7/28/2007
CLASSIFIED ADS
SERVICES
SERVICES
LEGAL RESEARCH AND WRITING. Brief writing,
motions, civil appeals, and trial support since 1995. Lou
Ann R. Barnes (918) 810-3755; [email protected]
AFARM Consulting, L.C.
Appeals and litigation support — Research
and writing by a veteran generalist who thrives
on wide variety of projects, big or small. Cogent.
Concise. Nancy K. Anderson, (405) 682-9554,
[email protected].
ABRAHAM’S SINCE 1959 NATIONWIDE
BAIL BONDS
Attorney’s EXPRESS Service
DISCOUNTED Bond Fees on Referrals
OFFICE OPEN & STAFFED 24/7
Toll Free 1-877-652-2245 OKC 528-8000
Raleigh A. Jobes, Ph.D.
2715 West Yost Rd
Stillwater, OK 74075-0869
Phone (405) 372-4485 Fax (405) 377-4485
E-Mail [email protected]
Agricultural Economic and Business Consultant
Will provide independent and objective analysis of agricultural
related problems. Resume and Fee schedule sent upon request.
INTERESTED in Purchasing Producing &
Non-Producing Minerals; ORRI; O & G Interests.
Please contact: Patrick Cowan, CPL, CSW Corporation,
P.O. Box 21655, Oklahoma City, OK 73156-1655; (405)
755-7200; Fax (405) 755-5555; E-mail: [email protected].
OFFICE SPACE
civil appeals, research projects, brief writing, discovery issues & litigation support.
Experienced former federal law clerk will handle state
and federal appeals, draft motions and briefs and assist
in trial preparation. Amy H. Wellington (405) 641-5787,
OFFICE SPACE AVAILABLE IN FOX CENTRE
(808 GORE, LAWTON). Reception area, handicapped
accessible, receptionist, conference room, kitchenette,
telephone answered, copier, fax, alarm system,
mail handling, and other services. Rates variable.
CONFIDENTIAL. (580) 353-3688 (Ask for Alex).
OF COUNSEL LEGAL RESOURCES — SINCE 1992 —
Exclusive research & writing. Highest quality: trial and
appellate, state and federal, admitted and practiced
U.S. Supreme Court. Over 20 published opinions with
numerous reversals on certiorari. MaryGaye LeBoeuf
(405) 728-9925, [email protected]
N.W. OKC location. Beautifully decorated site. Three
spacious offices available. Amenities: receptionist,
conference room, two mediation rooms, copier, fax,
phones, postage machine, internet, security system and
kitchen. By appointment only (405) 603-6344.
Experts in Economic Damages
Anderson Economic Group, LLC
Lost Earnings Calculations, Commercial Damages,
Antitrust, Business & Asset Valuations, Fairness Opinions,
Franchise Disputes. Contact Patrick Fitzgerald at (405)
360-4040 or visit www.AndersonEconomicGroup.com
Certified Computer Examiner, John W. Bridges,
Norman, OK., (405) 310-2629 www.jbadata.com
HANDWRITING IDENTIFICATION
POLYGRAPH EXAMINATION
Board Certified
Diplomate — ABFE
Life Fellow — ACFE
Court Qualified
Former OSBI Agent
FBI National Academy
Arthur D. Linville (405) 636-1522
Let me help with your Medical Record Review and
Medical Chronologies. I am a Registered Nurse/Attorney with hospital and nursing home experience. Lisa
Stanton, (405) 285-0907, [email protected].
Vol. 78 — No. 20 — 7/28/2007
OFFICE SPACE AVAILABLE for Office Sharing Agreement with other Attorneys in Grove, Oklahoma. Telephone, Fax, Internet Support are available at additional
cost. (918) 786-4500.
SPACIOUS OFFICE WITH A VIEW — MID-TOWN
OKC - NW 13th and Dewey. Partially furnished;
ceiling fan and tract lighting. Secretarial bay also available.
Parking, fax, copier, automated voice mail system, DSL
Internet, law library/conference room, kitchen. (405)
525-0033 or [email protected].
GREAT DOWNTOWN OKC LOCATION — ONE
OFFICE AVAILABLE FOR SUBLEASE Receptionist,
phone, copier, fax, law library, kitchen, conference room
and DSL internet. Call Denise at (405) 236-3600 or come
by 204 N. Robinson, Suite 2200.
OFFICES FOR RENT: NW Classen Location, OKC.
Telephone, law library, conference room, waiting area,
receptionist, telephone answering service, Desk & Chair
& filing cabinet all included; rent $490.00 per month.
Free parking. No lease required. Gene (405) 525-6671.
1907
POSITIONS AVAILABLE
OFFICE SPACE
Downtown Edmond Office — fully renovated
high end space on Broadway. Monthly rate may include furnished office, shared receptionist, reception
area, conference room, phone, internet, voicemail,
etc. Security access with fingerprint technology. One
minute from county extension office and post office.
Call Dustin Davis or Bryan Evans at (405) 286-2335 or
[email protected].
DOWNTOWN OKC: Onsite Parking. Walk to Court.
Four offices available & will lease individually.
Internet, copies, color fax, reception, phone system,
voice mail, conference room & kitchenette. Corner of
Reno & Walker. (405) 239-1000.
POSITIONS AVAILABLE
AV rated Holdenville attorney
associate with 0-5 years experience. General
Emphasis on title, oil and gas, estates and
Fax resume to: (405) 379-5446 or email to
heathlawoffice.com
seeking
practice.
probate.
harold@
Established firm wants experienced associate
in oil and gas and general practice; and an associate
experienced in general business and estate planning.
Salary based upon experience. Also, space to share
with established attorney in north OKC. E-mail to
[email protected].
The law firm of Holden Carr & Skeens seeks
an experienced litigator for the firm’s Oklahoma City
office. Located in downtown Oklahoma City, Holden
Carr & Skeens is an insurance defense firm with a broad
client base and a strong, growing presence in Oklahoma City. The firm seeks attorneys with 10 years of
experience or more in litigation and, in particular, jury
trial practice. Proven track record in business development required. Those seeking to ascend to leadership
and build on the foundation for the firm’s Oklahoma
City operations are encouraged to inquire. The firm
strives to be the best and requests nothing less from
its members, therefore strong academic credentials and
trial practice skills are required. Salary is commensurate with experience. All applications will be kept
in the strictest confidence. To inquire, please contact
[email protected].
LOCALLY OWNED OKLAHOMA CITY OIL AND
GAS COMPANY seeks attorney with 2 to 5 years
experience in oil and gas, real estate and contracts
preparation and review. Must have good communication skills. Please send resume to Box “Y,” Oklahoma
Bar Association, P.O. Box 53036 Oklahoma City, OK
73152
Title Examination Attorney position available. Commercial and Residential examination experience required. Underwriting experience a plus. Please
mail, fax or email resume to: Stewart Abstract & Title
of Oklahoma, 701 N. Broadway, Suite 300, Oklahoma
City, OK 73102. Attn: Gerri Heidebrecht. [email protected] (405) 232-6764 phone, (405) 2325741 fax
1908
Downtown OKC law firm seeks a self-motivated
associate with 3-5 years of experience in civil practice.
Salary commensurate with experience. Send resume
and salary requirements to: Box “E,” Oklahoma Bar
Association, P.O. Box 53036, Oklahoma City, OK 73152.
Edmond business and litigation firm seeking an attorney with 5+ years experience with litigation
in employment and business/transaction areas. Good
salary and benefits for a self-starter who is looking to
establish a long term relationship. Applicants must be
organized, with good writing and research skills, and
personable. Send resume and writing sample to Mike
Rubenstein at RUBENSTEIN, BRYAN, McCORMICK
& PITTS, 1503 E. 19TH, Edmond, OK 73013 or [email protected].
The law firm of Holden Carr & Skeens
seeks a research and writing attorney with 3-5 years
experience to fill an immediate position in their Tulsa
office. Primary practice areas are insurance defense and
general civil litigation. Salary is commensurate with
experience. All applications will be kept in the strictest confidence. To inquire, please contact MikeCarr@
HoldenOklahoma.com.
OKC AV firm seeks associate with 2-5 yrs experience.
The attorney must be a motivated self-starter. The
position allows an attorney to handle his or her own
case load with supervision. Law firm is interested in
hiring an attorney who is interested in representing
plaintiffs. Excellent benefits. Send resume and salary
requirements to Box “Q,” Oklahoma Bar Association,
P.O. Box 53036, Oklahoma City, OK 73152.
DOWNTOWN Oklahoma City AV-rated law firm,
seeks a self-motivated associate with 2-4 years
of experience in insurance defense and personal
injury-related cases. Responsibilities include depositions, research, discovery, and trial work. Salary
commensurate with experience. Reply to Box “J,”
Oklahoma Bar Association, P.O. Box 53036, Oklahoma
City, OK 73152.
NORTHEAST OKLAHOMA: 15 Attorney AV Rated
Law Firm is seeking an experienced attorney to assist and take direct responsibility for complex estate
planning and probate matters as well as business/
transactional matters. Firm’s clients are widely diversified, including significant institutional clients, estates, trusts and start up businesses. Salary commensurate with experience. Send reply in confidence to
Box “U,” Oklahoma Bar Association, P.O. Box 53036,
Oklahoma City, OK 73152.
DOWNTOWN TULSA AV-rated law Firm seeks associate to work in the Firm’s Business Law Section. Duties
will include labor and employment law, general corporate transactions and real estate. Candidates should
have up to three years experience in some or all of these
areas, excellent academic record and the ability to handle multiple tasks. Salary commensurate with experience. Send replies to Box “S,” Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, OK 73152.
Vol. 78 — No. 20 — 7/28/2007
POSITIONS AVAILABLE
POSITIONS AVAILABLE
The Oklahoma Corporation Commission
has an opening for a Legal Assistant in the Office of
General Counsel. This is an unclassified position with
a salary of $36,000 annually. Applicants must have 5
years of legal secretary work including 2 years of experience as a legal assistant. Mail resumes to: Oklahoma
Corporation Commission, Human Resources Division,
P.O. Box 52000, Oklahoma City, Oklahoma 73152-2000.
For inquiries, contact Pat Walters at (405) 522-2220 or at
[email protected] Deadline: August 10, 2007.
Edmond business and litigation firm
needing a full time assistant to perform light legal
assistant work, filings, errands, and file organization.
Applicants must be personable, well organized, and
willing to work hard.
Send resumes to Mike
Rubenstein at 1503 E. 19th, Edmond, OK 73013 or
[email protected].
OKLAHOMA CITY LAW FIRM concentrating in
the statewide representation of mortgage
lenders seeks experienced title attorney.
Title examination experience required. Statewide travel required. Send resume and salary
requirement to Kirk J. Cejda c/o Shapiro & Cejda,
L.L.P., 770 N.E. 63rd, Oklahoma City, OK 73105 or
by e-mail to [email protected]
AV rated OKC firm near downtown seeks associate for estate and transactional position. Emphasis
on estate planning, business planning, contracts and
tax disputes. Strong writing skills and academic background required. All replies confidential. Send resume
and writing sample to: Box “P,” Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, OK 73152.
AV RATED WOODWARD LAW FIRM seeks an
attorney with 0 to 5 years experience in corporate,
real estate, probate and estate planning. Please send
resume and references to Box “F,” Oklahoma Bar
Compensation package commensurate with experience.
Downtown OKC AV-rated law firm seeks a legal assistant/receptionist. Requires strong word processing skills, experience with Microsoft Excel/Outlook, oral
and written communication skills, organizational skills,
positive attitude and professional appearance. Compensation commensurate with experience. All replies held
in confidence. Please send resume to: Box “M,” Oklahoma Bar Association, P.O. Box 53036, Oklahoma City,
OK 73152.
Expanding Oklahoma City based law firm
with diverse litigation and business law practice (insurance defense, construction law, commercial litigation)
needs five to ten year attorney. We are looking for excellent academic record, exceptional research and writing skills, first chair trial experience and proven ability
to handle own caseload. Please send resume, writing
sample and references to Box “G,” Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, OK 73152.
BUSY PLAINTIFF ATTORNEY SEEKS APPLICANTS
FOR ASSOCIATE ATTORNEY POSITION with a
minimum of two years experience in social security.
A competitive compensation package commensurate
with experience. All contacts kept confidential. Send
resume to: Box “N,” Oklahoma Bar Association, P.O.
Box 53036, Oklahoma City, OK 73152.
Vol. 78 — No. 20 — 7/28/2007
GROWING NW OKC LAW FIRM handling diverse
civil litigation, medical malpractice and securities arbitration cases, seeks an attorney with 0 – 5 years experience for immediate position. Candidates must be
self-motivated with excellent research/writing skills.
Responsibilities include research, brief writing, discovery, depositions and court appearances. Compensation
package commensurate with experience. Send resume,
writing sample and salary requirements to dpeters@
woskaswim.com or fax to (405) 285-9350.
TULSA CIVIL LITIGATION FIRM seeks an associate
with 1-5 years of experience to handle a diverse civil
litigation practice, including all aspects of insurance
defense and general civil litigation. Candidate must
have excellent oral and written communication skills,
and must be willing to become immediately involved
in a variety of litigation matters. Salary is commensurate with experience. Please send resume and references to Box “C,” Oklahoma Bar Association, P.O. Box
53036, Oklahoma City, OK 73152.
SMALL OKC AV FIRM seeks paralegal experienced in
personal injury litigation cases. Must be a self-starter
with excellent organizational, communication, and
computer skills. Benefits include health insurance,
401-K, parking, a private office and friendly co-workers. Salary commensurate with experience and performance. All contacts will be kept confidential. Send
resume and last salary information to Box “A,” Oklahoma Bar Association, P. O. Box 53036, Oklahoma City,
OK 73152.
TULSA CIVIL LITIGATION FIRM seeks an associate
with 1-3 yrs. experience who is eager to be a contributing
member of a successful litigation team. Candidate must
possess excellent research and writing skills, a proactive
outlook and strong decision-making abilities. Top 25% of
graduating class preferred. Compensation package commensurate with experience. Send resume, cover letter,
class rank and writing sample to Box “V,” Oklahoma Bar
Quail Springs Mall Area Personal Injury
firm is looking for self motivated, aggressive, hard
working attorney to handle personal injury cases. Must
have at least 3 years litigation experience in the area of
civil litigation and preferably have handled or assisted
in wrongful death or serious injury type cases. Also,
must have excellent research and writing skills. Send
salary requirements, writing sample and resume via
facsimile to Ray Maples at (405) 488-1485 or email to
[email protected].
1909
POSITIONS AVAILABLE
CLASSIFIED INFORMATION
HARD WORK REWARDED at young, growing, AVrated downtown OKC firm with 8 attorneys. Seeking
associate with 1 to 3 years civil litigation experience,
preferably insurance defense. Strong research and
writing skills a must. Best benefits in town. Salary and
bonuses commensurate with experience. Send resume
and writing sample to Box “X,” Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, OK 73152.
CLASSIFIED RATES: One dollar per word per
insertion. Minimum charge $35. Add $15 surcharge
per issue for blind box advertisements to cover
forwarding of replies. Blind box word count
must include “Box ____ , Oklahoma Bar
Association, P.O. Box 53036, Oklahoma City,
OK 73152.” Display classified ads with bold
headline and border are $50 per inch. See www.okbar.
org for issue dates and Display Ad sizes and rates.
OKLAHOMA CITY FIRM focusing mainly in personal
injury and criminal law practice seeks associate. Competitive salary. Flexible hours. All contacts will be kept
confidential. Send resume to Box “I,” Oklahoma Bar
NATIONAL RIGHT OF WAY COMPANY based in Oklahoma is recruiting individuals for title research and right of
way acquisition for projects located throughout the United
States. Individuals will be required to be away from home for
extended periods of time at project locations. Employee
benefits offered. EOE. Submit resume to [email protected] or Coates Field Service, Inc. POB 25277,
OKC 73125.
ABOWITZ, TIMBERLAKE & DAHNKE, P.C., an AV
rated downtown OKC law firm, is seeking a motivated
lawyer with at least three years experience in civil trial
practice. Applicant should be energetic, write well,
and be willing to devote the time and effort necessary
to provide the best legal services to our clients. Send
Resume to P.O. Box 1937, Oklahoma City, OK 73101.
Your Mom
Always Said
Nothing
In Life
BUSINESS OPPORTUNITY
Is Free…
DEADLINE: Tuesday noon before publication.
Ads must be prepaid. Send ad (e-mail preferred) in
writing stating number of times to be published to:
elissa Brown
M
Oklahoma Bar Association
P.O. Box 53036
Oklahoma City, OK 73152
Publication and contents of any advertisement is not
to be deemed an endorsement of the views expressed
therein, nor shall the publication of any advertisement
be considered an endorsement of the procedure or
service involved. All placement notices must be clearly
non-discriminatory.
Your Mom Always Said
Nothing In Life Is Free…
Attorney/title insurance agent desires to purchase
title/closing company in Tulsa or surrounding
communities. All replies will be held in strictest
confidence. Please respond to Box “W,” Oklahoma
Bar Association, P.O. Box 53036, Oklahoma City, OK
73152.
Sorry Mom.
FOR SALE
SUCCESSFUL OKC AV-RATED family-law firm
for sale or to enter into a partnership with Owner
remaining of counsel instead. Contact D.R. at
(405) 812-3870. Must sign nondisclosure agreeement.
Get your FREE listing on the
OBA’s lawyer listing service!
BOOKS
Sorry Mom.
THE LAWBOOK EXCHANGE, LTD. Buys, sells and
appraises all major law book sets. Also antiquarian,
scholarly. Reprints of legal classics. Catalogues
issued in print and online MasterCard, Visa
and AmEx. (800) 422-6686; fax: (732) 382-1887;
www.lawbookexchange.com.
1910
Get your FREE
listing on the
OBA’s lawyer
listing service!
Go to www.okbar.org and
log into your myokbar account.
Then, click on the “Find a Lawyer” Link.
Vol. 78 — No. 20 — 7/28/2007
OBA/CLE presents
Gain the Edge!®
Latz’s Golden Rules of a Negotiation - Part C
- A WebinarDATE:
TIM E:
December 5, 2007
1:00 p.m - 2:00 p.m
CLE CREDIT:
TUITION:
CANCELLATION
POLICY:
Tele-W eb sem inars use both the telephone and the Internet. Attendees listen to faculty over the telephone
and also follow along over the Internet. These interactive sem inars, in som e cases allow attendees to subm it
questions to the faculty through their com puter in addition to asking questions over the phone.
About the Program :
YOU NEGOTIATE EVERY DAY! In fact, your ability to effectively negotiate m ay be the m ost critical skill you
possess. Yet m ost negotiate instinctively or intuitively. This telesem inar will help you approach negotiations
with a strategic m ind set.
And m ake no m istake – no m atter how m uch you have negotiated, you can still learn. Adding that one new
tactic m ay be the difference between winning and walking away em pty-handed. In this third of three
telesem inars, national negotiation expert Martin Latz will help m ake YOU a m ore effective negotiator by
focusing on his final Golden Rule of Negotiation Control the Agenda and on Situation Specific Strategies to
use when you care about a relationship with your counterpart.
•
•
•
•
•
Powerful agenda control techniques
Strategies to get past “No” – when all appears lost
W ays to effectively use deadlines and tim ing elem ents
Com petitive techniques versus problem -solving strategies
Personality styles’ im pact on negotiations
Vol. 78 — No. 20 — 7/28/2007
1911
OBA/CLE presents
Negotiation Ethics: Winning Without Selling Your Soul
Part C
- A Telephone SeminarDATE:
TIM E:
December 18, 2007
1:00 p.m - 2:00 p.m
CLE CREDIT:
Legal Education Com m ission for 1.0 hour of m andatory CLE Credit, including 1.0 hours of
TUITION:
CANCELLAT IO N
POLICY:
About the Program :
In real estate, it’s “location, location, location.” In negotiation, it’s “reputation, reputation, reputation.” A
trustworthy reputation – once lost – m ay be im possible to regain. In this telesem inar, negotiation expert Marty
Latz will discuss two ethically challenging negotiation scenarios. Each will highlight:
•
•
•
Morality: Is it right to engage in certain behavior?
Ethics: Is it ethical under the Rules of Professional Conduct and/or legal?
Effectiveness: Does it work?
You will learn in this session – focused on agenda control and “fair” standards - how to:
•
•
•
Maintain objectivity and professionalism in difficult negotiations
Ethically use tim ing and deadlines to your advantage
Deal with gam es like good cop/bad cop and context m anipulators

Court Material - Oklahoma Bar Association

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