Vol 87 No 17 (Jun 25) - Oklahoma Bar Association

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Vol 87 No 17 (Jun 25) - Oklahoma Bar Association
Volume 87 u No. 17 u June 25, 2016
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The Oklahoma Bar Journal
Vol. 87 — No. 17 — 6/25/2016
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Vol. 87 — No. 17 — 6/25/2016
Volume 87 u No. 17 u June 25, 2016
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The Oklahoma Bar Journal
Vol. 87 — No. 17 — 6/25/2016
Oklahoma Bar Association
table of
contents
June 25, 2016 • Vol. 87 • No. 17
page
1206 Index to Court Opinions
1208Opinions of Supreme Court
1258 Resignations and Reinstatements
1259 Calendar of Events
1261Opinions of Court of Criminal Appeals
1268Disposition of Cases Other Than by Publication
Vol. 87 — No. 17 — 6/25/2016
The Oklahoma Bar Journal
1205
Index to Opinions of Supreme Court
2016 OK 59 IN RE: INITIATIVE PETITION NO. 403, STATE QUESTION NO. 779. Case
Number 114,982.................................................................................................................................. 1208
2016 OK 60 IN RE: AMENDMENT OF RULE 5 OF THE RULES GOVERNING ADMISSION TO THE PRACTICE OF LAW, 5 O.S. Supp. 2015, ch. 1, app. 5 ) SCBD 6349................ 1208
2016 OK 61 IN THE MATTER OF THE REINSTATEMENT OF: MELISSA JAN GILL TO
MEMBERSHIP IN THE OKLAHOMA BAR ASSOCIATION AND TO THE ROLL OF
ATTORNEYS SCBD No. 6309.......................................................................................................... 1209
2016 OK 62 MAMIE MAREE, as Personal Representative of the Estate of CARLA SUE
MAREE, deceased, Petitioner, v. HONORABLE JUDGE GERALD F. NEUWIRTH,
Judge of the District Court for Comanche County, Respondent, and PSG-WILLOW
PARK, LLC, d/b/a WILLOW PARK HEALTH CARE CENTER, Real Party in Interest.
Case No. 114,737................................................................................................................................. 1216
2016 OK 63 IN THE MATTER OF THE SUSPENSION OF MEMBERS OF THE OKLAHOMA BAR ASSOCIATION FOR NONPAYMENT OF 2016 DUES SCBD No. 6395............ 1219
2016 OK 64 IN THE MATTER OF THE SUSPENSION OF MEMBERS OF THE OKLAHOMA BAR ASSOCIATION FOR NONCOMPLIANCE WITH MANDATORY
CONTINUING LEGAL EDUCATION REQUIREMENTS FOR THE YEAR 2015
SCBD No. 6396................................................................................................................................... 1222
2016 OK 65 LOGAN COUNTY CONSERVATION DISTRICT, An Oklahoma conservation
district, Petitioner/Appellee, v. PLEASANT OAKS HOMEOWNERS ASSOCIATION,
PHYLLIS JEAN CROWDER and JOHN HERMAN WHITE, JR., Respondents/Appellants, and PLEASANT OAKS LAKE ASSOCIATION INC.; PLEASANT OAKS
HOMEOWNERS ASSOCIATION; PHYLLIS CROWDER; JOHN HERMAN WHITE,
JR.; DALE BROOMFIELD; SUSAN BROOMFIELD; MICHAEL BRADLEY BROOMFIELD; EARL B. ENGLAND; KATHY K. ENGLAND; NORBERT K. WENGER;
MICHAEL D. FAIRLESS; WANDA E. FAIRLESS; QUAYYUM QAISAR JALIL AND
TASNIM RAZIA BEGUN REVOCABLE TRUST DATED OCTOBER 12, 2005; DONOVAN R. UNDERWOOD; MARION WALTON; LEON WALTON; CHARLES C. LINHARDT; JENNIFER D. LINHARDT; GEORGE SCOTT WELLS; MARILYN ELKINS
WELLS; ED BETCHAN; ERICKA BETCHAN; WILLIAM JACK SKAGGS; WINONA
L. SKAGGS REVOCABLE TRUST; ERWIN DALE LEAVERTON; THELMA J. LEAVERTON; WILLIAM LOUIS KEEL; DANNY CLINE; THOMAS EUGENE PLUNKETT; CARLA R. PLUNKETT; JAY W. BARNETT; TASA C. BARNETT, Respondents.
Case No. 113,313; Comp. w/113,318............................................................................................... 1224
2016 OK 66 IN THE MATTER OF THE REINSTATEMENT OF JEFFERY DANE
WAGNON, TO MEMBERSHIP IN THE OKLAHOMA BAR ASSOCIATION AND TO
THE ROLL OF ATTORNEYS SCBD # 6067.................................................................................... 1231
1206
The Oklahoma Bar Journal
Vol. 87 — No. 17 — 6/25/2016
2016 OK 67 AMERICAN NATURAL RESOURCES, LLC, an Oklahoma limited liability
company, Respondent/Appellant, v. EAGLE ROCK ENERGY PARTNERS, L.P., a
Delaware limited partnership, and EAGLE ROCK MID-CONTINENT OPERATING,
LLC, a Delaware limited liability company, EAGLE ROCK MID-CONTINENT
HOLDING, a Delaware limited liability company, EAGLE ROCK MID-CONTINENT
ASSET, LLC, a Delaware limited liability company, EAGLE ROCK ENERGY GP, L.P.,
a Delaware limited liability company, EAGLE ROCK ENERGY G&P, LLC, a Delaware limited liability company, Petitioners/Appellees. No. 113,105......................................... 1235
2016 OK 68 In the Matter of the Reinstatement of Harold Glenn Drain, To Membership in
the Oklahoma Bar Association and to the Roll of Attorneys SCBD 6271................................. 1240
2016 OK 69 WILLIAM P. NELSON, and JON NELSON, individually and as Co-Personal
Representatives and/or Co-Executors of the Estate of Ethel A. Nelson, and as CoTrustees of the Ethel A. Nelson Revocable Trust and as heirs and next of kin of Ethel
A. Nelson, Plaintiffs/Appellants, v. ENID MEDICAL ASSOCIATES, INC., and DAVID SHEPHERD, Defendants/Appellees, and UNIVERSAL HEALTH SERVICES,
INC., (UHS), individually and d/b/a St. Mary’s Regional Medical Center; UHS OF
OKLAHOMA, INC., individually and d/b/a St. Mary’s Regional Medical Center, ST.
MARY’S REGIONAL MEDICAL CENTER, HENRY D. VAUGHAN, a.k.a H. DEAN
VAUGHAN a.k.a. HENRY D. VAUGHN a.k.a H. DEAN VAUGHN, RONALD W.
SHRECK, and ENID EMERGENCY PHYSICIANS, L.L.P., Defendants. No. 110,665............. 1242
Index to Opinions of Court of Criminal Appeals
2016 OK CR 11 IN RE: ADOPTION OF THE 2016 REVISIONS TO THE OKLAHOMA
UNIFORM JURY INSTRUCTIONS - CRIMINAL (SECOND EDITION) CASE NO.
CCAD-2016-1...................................................................................................................................... 1261
2016 OK CR 12 MARVEL EDWARD LEWIS, Petitioner, vs. THE CITY OF OKLAHOMA
CITY, Respondent. No. C-2015-1117................................................................................................ 1261
2016 OK CR 13 PAUL OWEN HAMILTON, Appellant, vs. THE STATE OF OKLAHOMA,
Appellee. No. F-2015-529.................................................................................................................. 1264
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Vol. 87 — No. 17 — 6/25/2016
The Oklahoma Bar Journal
1207
Supreme Court Opinions
Manner and Form of Opinions in the Appellate Courts;
See Rule 1.200, Rules — Okla. Sup. Ct. R., 12 O.S. Supp. 1996 (1997 T. 12 Special Supplement)
2016 OK 59
IN RE: INITIATIVE PETITION NO. 403,
STATE QUESTION NO. 779.
Case Number 114,982. June 1, 2016
STATE OF OKLAHOMA, TO:
CHRIS BENGE, SECRETARY OF STATE,
STATE OF OKLAHOMA
GREETINGS:
ORDER
¶1 An initiative petition has been circulated in
the State of Oklahoma, seeking the approval by
the electorate of State Question No. 779, a proposed amendment to the Oklahoma Constitution, by adding Article 13-C, which would create
the “Oklahoma Education Improvement Fund,”
to be funded with an additional one-cent sales
and use tax; for purposes related to the improvement of public education.
¶2 In accordance with 34 O.S. Supp. 2015 § 8,
the Court recognizes the certification of the Secretary of State that the petition contains 301,512
signatures. The Court further recognizes that the
number of signatures necessary to place the
measure before the electorate is 123,725, being
15% of the votes cast for the state office receiving
the highest number of votes in the November,
2014 general election. The signatures on the petition appear numerically sufficient.
¶3 The Secretary of State is directed forthwith
to cause to be published in at least one newspaper of general circulation in the State of Oklahoma, a public notice of the filing of Initiative
Petition No. 403, State Question No. 779, and of
the apparent numerical sufficiency of the signatures. The Secretary of State shall also publish
the text of the ballot title as rewritten by the
Attorney General pursuant to 34 O.S.Supp.2015
§ 9(D). The notice shall advise that any citizen of
the State of Oklahoma may file a written objection to the signature count, or the rewritten ballot title, in the office of the Clerk of the Supreme
Court of the State of Oklahoma, with a copy
directed to the proponents of the petition and
the Attorney General. Any such objection must
be filed with the Clerk of the Supreme Court not
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later than ten (10) days from the date of publication. A copy of the objection must also be filed
with the Secretary of State.
¶4 Proceedings in the Supreme Court to
resolve any objection shall be in accordance with
34 O.S.Supp.2015 §§ 8-11, and such other procedures as may be ordered by the Court.
¶5 The Secretary of State is directed to obtain
verified proof of publication of the notice herein
directed, and to file the same with the Clerk of
this Court as a return to this order.
DONE BY ORDER OF THE SUPREME COURT
IN CONFERENCE THIS 31ST DAY OF MAY,
2016.
/s/ John F. Reif
CHIEF JUSTICE
¶6 Reif, C.J., Combs, V.C.J., Kauger, Winchester, Edmondson, Taylor (by separate writing
with whom Kauger and Winchester, JJ., join),
Gurich, JJ., concur.
Taylor, J., with whom Kauger and Winchester, JJ., join, concurring:
Based upon the statutorily-limited scope of
this review of signatures, I concur. I continue to urge the concerns expressed in my
dissent in In re Initiative Petition No. 403,
2016 OK 1.
¶7 Watt and Colbert, JJ., not participating.
2016 OK 60
IN RE: AMENDMENT OF RULE 5 OF THE
RULES GOVERNING ADMISSION TO
THE PRACTICE OF LAW, 5 O.S. Supp. 2015,
ch. 1, app. 5 )
SCBD 6349. June 1, 2016
ORDER
Rule 5 of The Rules Governing Admission to
the Practice of Law in the State of Oklahoma,
as currently amended by this Court’s Order of
May 23, 2016, 2016 OK 57, and attached hereto,
is hereby amended effective immediately.
The Oklahoma Bar Journal
Vol. 87 — No. 17 — 6/25/2016
DONE BY ORDER OF THE SUPREME
COURT IN CONFERENCE the 31st day of
May, 2016.
/s/ John R. Reif
CHIEF JUSTICE
Rules Governing Admission to the Practice of
Law in the State of Oklahoma
C) shall have attained a satisfactory score on
The Multistate Bar Examination (MBE), when
considered in combination with the score
obtained in Subsection B; and
D) and C) are otherwise qualified under
these rules
Chapter 1, App. 5
Rule 5. Examination.
All applicants for admission by examination
who:
A) shall have attained a grade of at least 75%
in the subject of Oklahoma Rules of Professional Conduct; and
B) shall have attained an average grade of at
least 75% on the examination given by the
Board of Bar Examiners covering combinations
of the subjects hereinafter specified; shall have
attained a combined grade equivalent to at
least 75% on the examination given by the
Board of Bar Examiners which shall include: 1)
the Multistate Bar Examination (MBE); and 2)
essay questions which cover combinations of
the subjects hereinafter specified:
The examination shall cover combinations of
the following subjects:
1. Oklahoma Rules of Professional Conduct
2. Commercial Law, which may include:
(a) Contracts
(b) Uniform Commercial Code
(c) Consumer Law
(d) Creditor’s rights, including bankruptcy
3. Property
4. Procedural Law, which may include:
(a) Pleadings
(b) Practice
(c) Evidence
(d) Remedies (damages, restitution and equity)
5. Criminal Law
6. Business Associations, which may include:
(a) Agency
(b) Partnerships (including joint ventures)
(c) Corporations
(d) Limited Liability Companies
7. Constitutional and Administrative Law
Vol. 87 — No. 17 — 6/25/2016
10. Conflicts of law
11. Family law
ALL JUSTICES CONCUR
8. Torts
9. Intestate Succession, wills, trusts, estate planning, including federal estate and gift taxation
shall be recommended by the Board of Bar
Examiners for admission to the practice of law
in this state.
Any applicant who is otherwise qualified to
be recommended for admission to the Bar
except by reason of failure to pass satisfactorily
the section of the Oklahoma Bar Examination
concerning the Oklahoma Rules of Professional Conduct shall be eligible for re-examination
on the subject Oklahoma Rules of Professional
Conduct. Such re-examination shall be conducted by the Board at a time and place to be
fixed by the Board and may be written or oral
or both. If, upon such reexamination, the applicant receives a satisfactory grade in the subject
Oklahoma Rules of Professional Conduct and
is found by the Board to have otherwise qualified to be recommended for admission to the
Bar, such applicant shall thereupon be so recommended. Any applicant who fails to receive a
satisfactory grade upon such reexamination
shall be required to reapply for permission to
take a further examination concerning the Oklahoma Rules of Professional Conduct, which may
be given at the discretion of the Board.
There shall be held two bar examinations each
year, at dates, times, places and duration to be
prescribed by the Board of Bar Examiners.
2016 OK 61
IN THE MATTER OF THE
REINSTATEMENT OF: MELISSA JAN GILL
TO MEMBERSHIP IN THE OKLAHOMA
BAR ASSOCIATION AND TO THE ROLL
OF ATTORNEYS
SCBD No. 6309. June 7, 2016
ORIGINAL PROCEEDING FOR
ATTORNEY REINSTATEMENT
¶0 Petitioner, Melissa Jan Gill, filed a petition
for reinstatement to membership in the Oklahoma Bar Association. The Oklahoma Bar As-
The Oklahoma Bar Journal
1209
sociation does not oppose this reinstatement.
The Trial Panel of the Professional Responsibility Tribunal unanimously recommended reinstatement. After our de novo review, we find the
Petitioner should be reinstated.
PETITION FOR REINSTATEMENT IS
GRANTED; PETITIONER IS ORDERED TO
PAY COSTS
Melissa Jan Gill, pro se.
Katherine Ogden, Assistant General Counsel,
Oklahoma Bar Association, Oklahoma City,
Oklahoma, for Respondent.
COMBS, V.C.J.
¶1 On September 25, 2015, Petitioner, Melissa
Jan Gill (Petitioner), filed her Petition for Reinstatement requesting she be readmitted as a
member of the Oklahoma Bar Association pursuant to Rule 11, Rules Governing Disciplinary
Proceedings, 5 O.S. 2011, Ch. 1, App. 1-A
(RGDP). The record reflects the Petitioner
graduated from the University of San Francisco School of Law in 1977 and was admitted to
the California Bar in 1978. In February 1979,
she graduated with an LL.M in taxation from
the New York University School of Law. Later
that year she was admitted to practice law in the
State of Oklahoma. She resided in Cleveland
County, Norman, Oklahoma, and practiced law
as an associate for the Bright & Nichols law firm
where she handled tax law matters for the firm.
While she was practicing law in Oklahoma she
voluntarily placed her California Bar license on
inactive status. In 1981, she moved to California and voluntarily placed her California Bar
license back on active status. She practiced law
in California from 1981 through 1999 in the
areas of taxation, estate planning and real
estate. In 2002, she placed her California Bar
license on inactive status as of January 1, 2001,
and has been an inactive member of the California Bar ever since.
¶2 On September 12, 1983, Petitioner was
suspended from membership in the Oklahoma
Bar Association (OBA) for failure to pay membership dues for the year 1983.1 Prior to the
suspension order, Petitioner had been in contact with the OBA and was told to complete a
form to resign her bar membership. In a letter
dated September 22, 1983, Petitioner notified
the OBA General Counsel of her intent to
resign and attached the completed application
for resignation and termination of membership.2 Her reason given for her resignation was
1210
that she was no longer practicing law in Oklahoma and was currently practicing law in California. Petitioner returned to Oklahoma in
April 2014 and resides in Norman, Oklahoma.
¶3 On January 12, 2016, a hearing on the Petition for Reinstatement was held before the
Trial Panel of the Professional Responsibility
Tribunal (PRT). The Oklahoma Bar Association
did not contest the Petition for Reinstatement
but emphasized the Petitioner still carried the
burden to prove the relevant factors for reinstatement by clear and convincing evidence.
The PRT found Petitioner had complied with
the applicable portions of Rule 11.1, RGDP and
had shown by clear and convincing evidence
each of the prerequisites for reinstatement
found in Rule 11.5, RGDP. It determined there
was overwhelming evidence presented that
Petitioner possessed the good moral character
necessary to practice law in Oklahoma and she
had not engaged in the unauthorized practice
of law in Oklahoma since her resignation. The
PRT found Petitioner kept abreast of current
legal developments through continuing legal
education in both California and Oklahoma
and by her work for legal professionals. The
PRT also determined she was not required to
prove other supplemental factors announced
in Matter of Reinstatement of Kamins, 1988 OK
32, ¶20, 752 P.2d 1125, because Petitioner did
not resign from the OBA pending disciplinary
proceedings. In fact, the PRT found Petitioner
has never been involved in any prior disciplinary proceedings. The PRT recommended she
be reinstated to membership in the OBA and
did not require her to re-take the bar examination. The PRT did, however, recommend the
following conditions: 1) completion of the
required number of continuing legal education hours for the calendar year in which reinstatement is granted, 2) payment of the costs
of the transcript for this hearing, 3) payment
of membership dues and penalties to the
OBA, and 4) payment of costs associated with
this proceeding.
¶4 The PRT’s report was filed with this Court
on February 17, 2016, and this Court issued a
briefing schedule on February 22, 2016. The
parties thereafter filed a Joint Motion for Waiver of Briefs wherein the parties agreed there
were no issues to be briefed and both agreed
with the findings and recommendations of the
PRT and further requested this Court approve
the PRT’s report. On March 15, 2016, this Court
granted the parties request to waive briefing.
The Oklahoma Bar Journal
Vol. 87 — No. 17 — 6/25/2016
STANDARD OF REVIEW
¶5 This Court has the non-delegable, constitutional responsibility to regulate both the
practice and the ethics, licensure, and discipline of Oklahoma practitioners of the law. In
the Matter of the Reinstatement of Kerr, 2015 OK
9, ¶6, 345 P.3d 1118. Our review of the record is
made de novo, in which we conduct a non-deferential, full-scale examination of all relevant
facts. State ex rel. Oklahoma Bar Association v.
Hulett, 2008 OK 38, ¶4, 183 P.3d 1014. In a proceeding involving no prior imposition of discipline for lawyer professional misconduct, the
focus of our inquiry concerns 1) the present
moral fitness of the applicant; 2) conduct subsequent to suspension as it relates to moral fitness and professional competence; 3) whether
the attorney has engaged in the unauthorized
practice of law; and 4) whether the attorney
has complied with the rule-mandated requirements for reinstatement. In the Matter of the
Reinstatement of Christopher, 2014 OK 73, ¶5, 330
P.3d 1221. The PRT’s recommendations concerning these matters, while entitled to great
weight, are advisory in character and the ultimate decision rests with this Court. In the Matter of the Reinstatement of Pate, 2008 OK 24, ¶3,
184 P.3d 528; Matter of Reinstatement of Floyd,
1989 OK 83, ¶3, 775 P.2d 815. Rule 11.4, RGDP,
provides an applicant seeking reinstatement
will be required to present stronger proof of
qualifications than one seeking admission for
the first time. In addition, Rule 11.5, RGDP provides in pertinent part:
At the conclusion of the hearing held on
the petition for reinstatement, the Trial
Panel of the Professional Responsibility
Tribunal shall file a report with the Supreme
Court, together with the transcript of the
hearing. Said report shall contain specific
findings upon each of the following:
....
(c) Whether or not the applicant possesses
the competency and learning in the law
required for admission to practice law in
the State of Oklahoma, except that any
applicant whose membership in the Association has been suspended or terminated
for a period of five (5) years or longer, or
who has been disbarred, shall be required
to take and successfully pass the regular
examination given by the Board of Bar
Examiners of the Oklahoma Bar Association. Provided, however, before the appliVol. 87 — No. 17 — 6/25/2016
cant shall be required to take and pass the
bar examination, he shall have a reasonable opportunity to show by clear and
convincing evidence that, notwithstanding his long absence from the practice of
law, he has continued to study and thus
has kept himself informed as to current
developments in the law sufficient to
maintain his competency. If the Trial Panel
finds that such evidence is insufficient to
establish the applicant’s competency and
learning in the law, it must require the
applicant to take and pass the regular bar
examination before a finding as to his
qualifications shall be made in his favor.
We have held this provision creates a rebuttable presumption that one who has been suspended for five years will not possess sufficient
competency in the law to be reinstated, absent
an extraordinary showing to that effect. In the
Matter of the Reinstatement of Farrant, 2004 OK
77, ¶7, 104 P.3d 567. Each application for reinstatement to the OBA must be considered on its
own merits and will fail or succeed on the evidence presented and the circumstances of the
attorney’s case. In the Matter of the Reinstatement of Kerr, 2015 OK 9, ¶19, 345 P.3d 1118.
ANALYSIS
I. Moral Fitness
¶6 The record reflects the Petitioner has
never been disciplined by the OBA or the California Bar; the only two states in which she was
licensed to practice law. Petitioner was in the
process of resigning from the OBA at the time
she received the 1983 order of suspension for
failure to pay dues. She finalized her resignation immediately after receiving that order.
Her reason for resigning was she no longer
practiced law in Oklahoma due to her living
and practicing law in California. Ten letters
were admitted as evidence which strongly supported a finding Petitioner possessed good
moral character. These letters were written by
past and current employers, religious leaders,
lawyers and a retired Oklahoma Court of
Criminal Appeals Judge. Testimony at the
hearing also supported Petitioner’s good moral
character. No contrary evidence was presented. The PRT found Petitioner had shown by
clear and convincing evidence she possessed
the good moral character to be readmitted to
the OBA. After an examination of the record,
we agree with this finding.
The Oklahoma Bar Journal
1211
II. Professional Competence Sufficient for
Reinstatement.
¶7 After moving to California in 1981, Petitioner worked as an associate in several law
firms over a eighteen-year period. Her areas of
practice in those firms were primarily in real
estate, business transactions, tax planning, and
estate planning. A majority of her career was
with the Law Offices of Bernard J. Schoenberg
in San Francisco, California, where she worked
through 1999. After 2000 she did not practice
law. In 2002 she voluntarily transferred her
California Bar license to the inactive status as
of January 1, 2001. Her career then continued
in politics and business. From 1997 through
2001 and from 2003 through 2007, she served
on the Town Council of Corte Madera, California, as an elected councilmember. She also
served two one-year terms as its mayor.
¶8 In 2001, Petitioner was hired in a nonlegal position with an urban land use planning
firm: The Marchese Company in San Francisco,
California. She worked for this company until
the end of 2013; right before her return to Oklahoma (April 2014). During Petitioner’s twelve
years of employment with The Marchese Company, her duties included work on a large hospital project in San Francisco which included
the drafting of an institutional master plan the
hospital was required to file with the city and
county, as well as many aspects of environmental compliance and public outreach. She
also drafted and managed contracts with consultants under the supervision of attorneys.
Ralph Marchese, the company’s president,
wrote that he relied on Petitioner’s professional capabilities in his company’s work on one of
California’s largest hospital systems.3 He stated
Petitioner was tasked to either assist him or
directly manage legal teams as well as other
professionals in the production of major
reports, applications for governmental entitlements, policy recommendations to his clients’
senior management, financial analyses and
related information vital to large scale projects.
Petitioner also testified that while working for
The Marchese Company she continued to take
California Bar sponsored continuing legal education courses in the areas of land use and
environmental law.
¶9 Two letters written by the Town Manager
and Assistant Town Manager of Corte Madera,
California, were admitted into evidence supporting Petitioner’s competency based upon
her work as a Town Council Member and
1212
Mayor of the town.4 The letters reflect the
many legal issues during Petitioner’s tenure
and how she had worked closely with the
Town Attorney. She helped solve complex
issues related to finance, flood control and fire
protection. She was also commended for championing policies to protect the rights of minority persons and women, the promotion of
housing opportunities for lower income people, and inclusiveness and equal opportunity
in the face of strident opposition.
¶10 Petitioner also engaged in significant
community work in California. Petitioner was
an Elder on Session and Chair of the Facilities
Use Committee of her local church. Part of her
duties included helping the church with complicated negotiations and leases for the church’s
renters. The pastor of her church wrote the
church would not be the community resource
for small private schools that it is today without Petitioner’s help.5 He also expressed her
competency in handling complicated tax forms
for the church and praised her stalwart defense
of providing meeting space to the children of
AA groups.
¶11 In April 2014, Petitioner returned to Norman, Oklahoma, where she continues to reside.
In August 2014, Petitioner took a part-time job
with the law firm Petersen, Henson, Meadows,
Pecore & Peot, P.C., Norman, Oklahoma, and
currently works there. Her work consists mainly of clerical and administrative tasks. Petitioner’s supervisor wrote a letter supporting
her reinstatement and stated her knowledge of
the law allows her to understand the firm’s
work processes and quickly understand tasks
assigned to her.6 She also notes Petitioner
watches online continuing legal education
courses during lunch hours.
¶12 In late 2014, Petitioner reconnected with
Bob Bright who was a partner in the law firm
which had employed her in 1979. Bright hired
Petitioner for part-time contract work to help
him with legal research concerning a complicated personal trust matter. Susan P. Moran,
attorney and long-time friend of the Petitioner,
was consulted on this matter as well. Moran,
who also received an LL.M in taxation from the
New York University School of Law, works in
the same office building as Bright and one of
her areas of expertise is estate planning. Both
Bright and Moran wrote letters supporting
Petitioner’s reinstatement emphasizing her
competency in the law. Moran wrote that Petitioner is currently assisting her in her law prac-
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Vol. 87 — No. 17 — 6/25/2016
tice with several estate planning projects.
Moran notes that Petitioner correctly analyzes
all of the family and property situations of the
clients and the two work together, under
Moran’s supervision, to determine how to best
meet the clients’ goals. Moran testified that she
and Petitioner plan to practice law together
once she is reinstated.
¶13 In addition to her work with attorneys
and law firms, Petitioner has been involved in
the Norman community. Upon her return to
Norman, Petitioner met at her church and
befriended Charles Johnson, retired Judge of
the Oklahoma Court of Criminal Appeals and
his wife Jan Johnson, also an attorney. Both
wrote letters supporting Petitioner’s reinstatement. Jan Johnson testified that Petitioner
serves with her on the Personnel Committee of
their church. This committee deals with hiring,
firing and filling of vacant positions at the
church. Petitioner was also recently elected as
an Elder which is a church governing position.
Her responsibilities have included handling
very divisive issues, such as, the sanctifying of
same sex marriages and pastor evaluations. Jan
Johnson also testified she had recently given
Petitioner a library of legal resources including
treatises, law manuals and practice forms to
help her in her future practice.
¶14 The record reflects that since 2015 Petitioner has taken twenty-four hours of continuing legal education which includes two hours
of ethics. Petitioner also testified that she has
kept abreast of the law by reading Bar Journals
and Supreme Court opinions.
¶15 In a recent opinion, this Court held an
attorney did not meet his burden of proving he
had the required competency in the law for
reinstatement without taking the Oklahoma
Bar Examination. In the Matter of the Reinstatement of Bodnar, 2016 OK 12, __P.3d___, 2016 WL
513756. Bodnar resigned from the OBA in 1999
and thereafter practiced law in Texas. Bodnar,
2016 OK 12 at ¶3. In 2003, he resigned from the
Texas Bar in lieu of discipline. Id. at ¶11. Thereafter, he worked as a title examiner until 2007,
then retired and moved to Oklahoma obtaining
an Oklahoma certification to teach social studies. Id. at ¶6. He applied for reinstatement to
the OBA on November 21, 2014. We noted Bodnar had not been licensed to practice law for
the last thirteen years and during this time his
attempts to maintain competency and learning
in the law included the teaching of U.S. History
and Government in the summer of 2008 at
Vol. 87 — No. 17 — 6/25/2016
Jenks High School, subscribing and reading the
Oklahoma Bar Journal for three months prior
to his reinstatement hearing and the taking of
one continuing legal education course. Id. at
¶8. We found his attempts to keep abreast of
the law were feeble when compared to practicing attorneys who are required to take twelve
hours of continuing legal education including
one hour of ethics, every year. Bodnar, 2016 OK
12 at ¶19.
¶16 In Bodnar, this Court relied on several
earlier opinions: In re Reinstatement of Turner,
1999 OK 72, 990 P.2d 861, In re Reinstatement of
Hardin, 1996 OK 115, 927 P.2d 545, and In re
Reinstatement of Farrant, 2004 OK 77, 104 P.3d
567. Bodnar, 2016 OK 12 at ¶¶20-23. In In re
Reinstatement of Turner, Turner had a long history of being suspended from membership in
the OBA for failure to pay dues and/or completing continuing legal education courses.
1999 OK 72, ¶2, 990 P.2d 861. He was eventually removed from the roll of attorneys on July
19, 1994. Turner, 1999 OK 72 at ¶2. In January
1998, he applied for reinstatement. Id. The
record reflected Turner had received twentyfour credit hours of mandatory continuing
legal education courses; the last of which was a
little over two years prior to applying for reinstatement. Id. at ¶10. The record also reflected
he had been reading the Oklahoma Bar Journal
and other legal publications since his suspension. Id. We held Turner had failed to prove by
clear and convincing evidence that he now
possesses the requisite legal skills for reinstatement. Id. at ¶20. Also, for purposes of determining his competency and learning in the
law, we would not consider his experience
obtained after suspension based upon his blatant unauthorized practice of law. Id.
¶17 In In re Reinstatement of Hardin, Hardin
resigned from the OBA in May 1990 pending
disciplinary proceedings. 1996 OK 115, ¶1, 967
P.2d 545. He applied for reinstatement in September 1995. The Professional Responsibility
Tribunal recommended against reinstatement
based upon two factors: his failure to file tax
returns for several years and his “present competence in legal skills.” Hardin 1996 OK 115 at
¶¶6 - 7. The only evidence to support his present competency in the law was that in the year
prior to applying for reinstatement he had
taken eighteen hours of mandatory continuing
legal education courses and read the Oklahoma Bar Journal. Id. at ¶6. Hardin was denied
reinstatement. Id. at ¶15.
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1213
¶18 In In re Reinstatement of Farrant, Farrant
was suspended from practicing law for one
year in 1994. 2004 OK 77, ¶ 1, 104 P.3d 567. He
filed for reinstatement ten years later in 2004.
Farrant, 2004 OK 77, ¶4. Following his suspension, he worked at a variety of different jobs
including substitute teaching, limousine driving, selling insurance, selling mobile homes
and managing a mobile home dealership. Id. at
¶3. In 2001, Farrant began thinking about the
possibility of reinstatement. Id. He completed
twelve hours of mandatory continuing legal
education courses in 2003, and a few other continuing legal education courses in 2004, had
worked on abstracts and was involved in
mediation. Id. at ¶11. We held Farrant had
failed to prove by clear and convincing evidence that he possessed the competency and
learning in the law required for reinstatement.
Id. at ¶18.
¶19 After analyzing these three cases in Bodnar, we concluded:
If twelve to twenty-four hours of continuing legal education courses in Turner, Hardin, and Farrant, were insufficient to show
competency and learning in the law by
clear-and-convincing evidence, and, if practicing attorneys must complete twelve hours
a year, taking one class and reading the
Oklahoma Bar Journal for three months is
certainly insufficient to meet the burden for
showing the competency and learning in the
law necessary for reinstatement without taking the Oklahoma Bar Examination.
In the Matter of the Reinstatement of Bodnar,
2016 OK 12, ¶23, __P.3d___, 2016 WL
513756.
We find the present case is distinguishable
from these cases. Petitioner practiced law in
California for almost eighteen years after
resigning from the OBA. She took twenty-four
hours of continuing legal education courses in
Oklahoma in 2015 and has been reading the
Oklahoma Bar Journal. In addition she took
continuing legal education courses in California after she placed her bar license on inactive
status. These courses were in land use and environmental law; topics relevant to the work she
was performing for The Marchese Company.
The record reflects during her twelve years with
The Marchese Company she drafted and managed contracts, assisted with managing the
company’s legal teams, and performed work
1214
concerning environmental compliance of her
tasked projects. Soon after she returned to
Oklahoma she performed supervised legal
research work for Bright and continues to perform supervised legal work for Moran as well
as working for a law firm in an administrative
capacity. Her advanced education in taxation is
relevant to the work she performed for Bright
and Moran and both testified positively about
her present competency in this area.
¶20 In In the Matter of the Reinstatement of
Jones, we gave great weight to the supervised
legal work Jones performed since her resignation from the OBA. 2006 OK 33, 142 P.3d 380.
Jones resigned her membership in the OBA
pending disciplinary proceedings in 1997 and
petitioned for reinstatement in 2004. Jones, 2006
OK 33 at ¶¶1 and 6. The record demonstrated
Jones earned a living after reinstatement by performing various non-legal jobs. Id. at ¶11. In the
year prior to petitioning for reinstatement we
noted Jones had received “hands-on” supervised legal experience while volunteering as a
law clerk. Id. at ¶¶11 - 12. In addition, we determined Jones had completed several hours of
continuing legal education courses and regularly read the Oklahoma Bar Journal. Id. at ¶12. We
held Jones had shown that her competence and
learning in the law qualified her for readmission without retaking the Oklahoma Bar Examination. Id.
¶21 In another opinion, Matter of Reinstatement of Essman, we attributed great weight to
the work experience of a suspended attorney.
1987 OK 102, 749 P.2d 103. Essman had been
suspended from the practice of law in Oklahoma for failure to pay dues and petitioned for
reinstatement over five years later. Essman,
1987 OK 102 at ¶1. In determining his competency to practice law, this Court reviewed his
work history. Since his suspension Essman had
been continuously employed as a landman. Id.
at ¶4. We determined his employment required
a thorough knowledge of matters affecting title
to real property and part of his duties included
preparation of legal instruments in the negotiations and purchasing of oil and gas leases. Id.
We found this evidence was sufficient to establish a continuing competency in a significant
area of the practice of law. Id. at ¶5. We also
found that the continuing legal education
courses he had completed added support to
this finding. Id. Essman was granted reinstatement without the need for retaking the Oklahoma Bar Examination. Id. at ¶6.
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Vol. 87 — No. 17 — 6/25/2016
¶22 Since resigning from membership in the
OBA, Petitioner’s work experience consisted of
the licensed practice of law in California, supervised legal work and employment in areas that
required an understanding of the law. In addition, her advanced education and understanding of the law was pertinent to her extensive
political and community service. This combined experience along with the completion of
continuing legal education courses and the
reading of the Oklahoma Bar Journal supports
Petitioner’s assertion she has maintained her
competency and learning in the law. The PRT
found Petitioner has kept abreast of current
legal developments and possessed the competency and learning in the law required for reinstatement. The PRT did not find Petitioner
should be required to re-take the Oklahoma
Bar Examination. We agree with the PRT and
find the Petitioner has proven by clear and
convincing evidence she possesses the level of
competency and learning in the law to be reinstated to membership in the OBA without reexamination.
has not practiced law in their respective courts
during that period. Petitioner has provided
applicable affidavits from the court clerks
where she resided in both Oklahoma and California. We find the Petitioner has proven by
clear and convincing evidence that she has not
engaged in the unauthorized practice of law as
required by Rule 11.1, RGDP.
III. Unauthorized Practice of Law and Rule
11.1, RGDP
¶26 We hold the Petitioner has met her burden
of proof and established by clear and convincing
evidence her eligibility for reinstatement without examination. Within thirty days of the date
of this opinion Petitioner shall pay the costs
incurred in this proceeding in the amount of
two hundred fifty-three dollars and five cents
($253.05) as required by Rule 11.1 (c), RGDP.
She shall also be required to pay the current
year’s (2016) OBA membership dues prior to
reinstatement and following reinstatement
shall complete mandatory continuing legal
education sometime this year in the same manner as other members of the bar.
¶23 The OBA investigator testified she had
found no evidence in her investigation to show
Petitioner had engaged in the unauthorized
practice of law. The investigator checked various databases, reviewed tax information and
solicited information. Petitioner worked for
The Marchese Company after she placed her
California Bar license on inactive status. The
investigator said she received a letter from Mr.
Marchese who claimed he had once asked Petitioner for legal advice but she refused due to
her license being in the inactive status. No
other evidence obtained from the investigation
indicated Petitioner had engaged in the unauthorized practice of law. Testimony from Bright
and Moran also indicated Petitioner’s work for
them had been under their supervision and
that she was not engaging in the unauthorized
practice of law.
¶24 Rule 11.1, RGDP provides a mechanism
for determining whether a petitioner has engaged in the unauthorized practice of law. In
paragraph (a) of the rule it requires the petitioner to submit an affidavit, attached to the
petition for reinstatement, from each court
clerk of the several counties in which he or she
resided after suspension or termination of the
right to practice law, establishing the petitioner
Vol. 87 — No. 17 — 6/25/2016
APPLICATION TO ASSESS COSTS
¶25 The Oklahoma Bar Association filed an
Application to Assess Costs, pursuant to Rule
11.1 (c), RGDP. The application requests the
Petitioner pay two hundred fifty-three dollars
and five cents ($253.05) for the costs related to
the expenses of this investigation and processing the application. The record reflects Petitioner has already paid past bar dues owed for
1983 and late charges as well as the cost of the
transcript of the PRT hearing. The record also
reflects that no Client’s Security Fund funds
were expended on Petitioner’s behalf.
CONCLUSION
PETITION FOR REINSTATEMENT IS
GRANTED; PETITIONER IS ORDERED TO
PAY COSTS
¶27 REIF, C.J., COMBS, V.C.J., and
KAUGER, WATT, WINCHESTER, EDMONDSON, TAYLOR, and COLBERT, JJ. - concur.
¶28 GURICH, J. - not participating.
COMBS, V.C.J.
1. Ex. 16 of the January 12, 2016, Hearing Exhibits; Supreme Court
Order S.C.B.D. 3132 (1983).
2. Ex. 17 of the January 12, 2016, Hearing Exhibits.
3. Ex. 8 of the January 12, 2016, Hearing Exhibits.
4. Exs. 2 and 5 of the January 12, 2016, Hearing Exhibits.
5. Ex. 6 of the January 12, 2016, Hearing Exhibits.
6. Ex. 9 of the January 12, 2016, Hearing Exhibits.
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1215
2016 OK 62
MAMIE MAREE, as Personal Representative
of the Estate of CARLA SUE MAREE,
deceased, Petitioner, v. HONORABLE
JUDGE GERALD F. NEUWIRTH, Judge of
the District Court for Comanche County,
Respondent, and PSG-WILLOW PARK, LLC,
d/b/a WILLOW PARK HEALTH CARE
CENTER, Real Party in Interest.
Case No. 114,737. June 7, 2016
APPLICATION TO ASSUME ORIGINAL
JURISDICTION AND PETITION FOR
WRITS OF PROHIBITION AND
MANDAMUS
¶0 Petitioner sought leave to add additional
defendants after the statute of limitations had
expired. The trial court denied leave solely
based upon 12 O.S. Supp. 2013, § 682 (B). Petitioner requests a Writ of Prohibition to prevent
the trial court from enforcing its order. In addition, Petitioner requests this Court issue a Writ
of Mandamus ordering Respondent to allow
Petitioner to amend her Petition and add the
proposed additional defendants. The Application to Assume Original Jurisdiction is granted.
Petitioner’s request for a Writ of Prohibition is
granted and the Writ of Mandamus is denied. We remand this matter to the trial court
to conduct further proceedings consistent
with this opinion.
APPLICATION TO ASSUME ORIGINAL
JURISDICTION GRANTED; WRIT OF
PROHIBITION GRANTED; WRIT OF
MANDAMUS DENIED.
L. Ray Maples, Glendell Nix and Nicole R.
Snapp-Holloway, Maples, Nix & Diesselhorst,
Oklahoma City, Oklahoma, for Petitioner.
Malinda S. Matlock and Kimberly A. Stevens,
Pierce, Couch, Hendrickson, Baysinger &
Green, L.L.P., Oklahoma City, Oklahoma, for
Real Party in Interest, PSG-Willow Park, L.L.C.
d/b/a Willow Park Health Care Center.
COMBS, V.C.J.
¶1 Mamie Maree, as personal representative
of the estate of Carla Sue Maree (Carla Maree),
deceased, (Petitioner) makes application to this
Court to assume original jurisdiction and petitions for a Writ of Prohibition prohibiting the
Honorable Gerald Neuwirth, District Judge of
Comanche County, Oklahoma (Respondent)
from enforcing his January 21, 2016, Order
denying Petitioner’s Motion to Amend Petition
1216
to add additional defendants. In addition, Petitioner petitions this Court for a Writ of Mandamus ordering Respondent to allow Petitioner to
amend her Petition and add additional defendants. The Application to Assume Original Jurisdiction and Writ of Prohibition is hereby granted
and Writ of Mandamus is denied.
FACTS AND PROCEDURAL HISTORY
¶2 The deceased, Carla Maree, was a nursing
home resident at Willow Park Health Care Center, Lawton, Oklahoma. On January 17, 2011,
Carla Maree fell. Petitioner claims she fell due to
the Defendant/Real Party in Interest’s, PSGWillow Park, L.L.C., d/b/a Willow Park Health
Center (Nursing Home), failure to timely
respond to a “call light” and provide Carla
Maree with appropriate toileting and assistance. In addition, it is alleged the Nursing
Home failed to contact a physician and other
necessary health care providers for at least
seven hours after the fall. On January 19, 2011,
Carla Maree died.
¶3 On January 18, 2013, the Petitioner filed a
Petition asserting Carla Maree’s suffering and
her ultimate death was caused by the negligence of the Nursing Home, corporately and/or
by and through its servants, agents, and employees. Petitioner also asserted the Nursing Home
as “owner/operator/licensee” of “Willow Park”
violated provisions of the Oklahoma Nursing
Home Care Act, 63 O.S. §1-1901 et seq. and such
violations were a direct cause of Carla Maree’s
injuries and death. In addition, Petitioner
averred the Nursing Home breached its contract with Carla Maree by failing to provide
physical care and supervision and breached its
contract with the State of Oklahoma, Oklahoma Health Care Authority by failing to comply
with federal and state laws and regulations
concerning long-term nursing care facilities.
Petitioner asserts Carla Maree was an intended
third-party beneficiary of the Nursing Home’s
contract with the state.
¶4 On November 13, 2015, Petitioner filed a
Motion to Amend the Petition to add additional defendants against whom she would
plead allegations of direct negligence in the
same character already described in her Petition. Petitioner’s counsel claims that during
participation in other litigation against the
same Defendant (Carol West v. PSG-Willow Park
et al., Comanche County Case no. CJ-2013-136)
they became aware of “certain individuals and
entities intertwined amongst and actually part
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Vol. 87 — No. 17 — 6/25/2016
of the named Defendant.” Petitioner alleges
Professional Service Group, LLC, Michael
McCann, and Lucretia Parkey were partners/
owners/lessors/managers of “Defendant Willow Park Health Care Center” at the time of
Carla Maree’s injury and death and directly
participated in the daily activities and operations of “Willow Park.” Petitioner asserts these
individuals made important decisions in
regards to staffing, budgeting, hiring and personnel issues, and policies and procedures,
including safety measures and directives regarding medical and other resident/patient
care and supervision. She also asserted there
were issues of record keeping and numerous
violations of proper reporting and violations of
failure to meet the necessary standards of care
for residents under state and federal law. In
addition, Petitioner alleges Professional Service Group, LLC manages and directs the day
to day operations of the “Willow Park facility”
and Lucretia Parkey and Michael McCann
directly participate in the management, control
and operations of the Nursing Home. Petitioner also stated in her Motion to Amend that
“because such direct claims will be properly
alleged and proven, alter ego and other vicarious claims for liability would be properly
added against these defendants.” In response,
the Nursing Home objected to the Motion to
Amend Petition for the following reasons: 1)
the statute of limitations barred the claims
against these other individuals and entities; 2)
Petitioner has caused undue delay in naming
these parties, the amendment would be prejudicial to the Nursing Home; 3) such amendment would violate 12 O.S. § 682 because the
statute prohibits claims against the officers,
directors and shareholders of a company and/
or the members and managers of a limited liability company for liability of the company;
and 4) the claims against the proposed individuals do not relate back to Petitioner’s original Petition.
¶5 A hearing was held on January 20, 2016,
concerning Petitioner’s Motion to Amend and
after taking the issue under advisement the
Respondent issued a minute order on January
21, 2016. The minute order stated:
After consideration of the argument of
[attorneys] & the briefs filed, the Court
finds that the [plaintiff’s] Motion to Amend
should be denied based on 12 O.S. 682 (B).
The Court finds that the conduct of the parties [plaintiff] wish to add was not in conVol. 87 — No. 17 — 6/25/2016
nection with or directly involved with the
occurrence which is the action originally
filed.
On February 25, 2016, Petitioner filed her
Application to Assume Original Jurisdiction
and Petition for Writs of Prohibition and
Mandamus.
STANDARD OF REVIEW
¶6 This Court assumes original jurisdiction
in the exercise of our general superintending
control over all inferior courts and all agencies,
commissions and boards created by law under
Okla. Const. Art. 7, § 4. Baby F. v. Oklahoma
County Dist. Court, 2015 OK 24, ¶8, 348 P.3d
1080; James v. Rogers, 1987 OK 20, ¶5, 734 P.2d
1298. This Court has the power on original
jurisdiction to correct an abuse of discretion or
compel action where the action taken is arbitrary even though the officer is vested with
judgment and discretion. State ex rel. Smith v.
Banking Bd., 1980 OK 84, ¶10, 612 P.2d 257.
Before a writ of prohibition may issue, a petitioner must show: 1) a court, officer, or person
has or is about to exercise judicial or quasijudicial power; 2) the exercise of said power is
unauthorized by law; and 3) the exercise of
that power will result in injury for which there
is no other adequate remedy. Baby F. v. Oklahoma County Dist. Court, 2015 OK 24, ¶8, 348 P.3d
1080; James v. Rogers, 1987 OK 20, ¶5, 734 P.2d
1298. The typical requirements for a writ of
mandamus are: (1) The party seeking the writ
has no plain and adequate remedy in the ordinary course of the law; (2) The party seeking
the writ possesses a clear legal right to the
relief sought; (3) The respondent (defendant)
has a plain legal duty regarding the relief
sought; (4) The respondent has refused to perform that duty; and (5) The respondent’s duty
does not involve the exercise of discretion.
Chandler (U.S.A.), Inc. v. Tyree, 2004 OK 16, ¶24,
87 P.3d 598.
ANALYSIS
¶7 The Respondent’s court minute denying
Petitioner’s request to add additional defendants relied solely upon 12 O.S. § 682 (B). At
the time of the court’s ruling this subsection
provided:
B. No suit or claim of any nature shall be
brought against any officer, director or
shareholder for the debt or liability of a
corporation of which he or she is an officer,
director or shareholder, until judgment is
The Oklahoma Bar Journal
1217
obtained therefor against the corporation
and execution thereon returned unsatisfied. This provision includes, but is not
limited to, claims based on vicarious liability and alter ego. Provided, nothing herein
prohibits a suit or claim against an officer,
director or shareholder for their own conduct, act or contractual obligation arising
out of or in connection with their direct
involvement in the same or related transaction or occurrence.
12 O.S. Supp. 2013, § 682; amended by 2013
Okla. Sess. Laws c. 265, § 1 (SB 1083)
(emphasis added).1
Subsection D of this section, also added in
2013, provides that “[m]embers and managers
of limited liability companies shall be afforded
the same substantive and procedural protection from suits and claims as the protections
provided to officers, directors and shareholder
of a corporation as set forth in subsections B
and C of this section.” The Nursing Home
asserts the proper time to assert claims against
these proposed defendants is after a judgment
has been obtained against the original defendant. We have not previously interpreted the
2013 amendments to 12 O.S. § 682.
¶7 The Nursing Home filed its answer to
Petitioner’s original Petition on February 27,
2015, and Petitioner filed her Motion to Amend
on November 13, 2015. A party seeking to
amend a pleading to add or drop parties, who
does not have consent of the adverse party,
must obtain leave of court when, as here, a
responsive pleading has been served.2 Title 12
O.S. 2011, § 2015 (A) also provides that “leave
shall be freely given when justice so requires.”
Petitioner asserts the trial court acted arbitrarily
in applying an incorrect standard and burden to
the Motion to Amend. Although Petitioner’s
Motion to Amend plead allegations of direct
negligence against the proposed defendants,
Petitioner argues, the trial court’s court minute
effectively decided the merits concerning her
claims against such defendants.
¶8 In Fanning v. Brown, the plaintiff, Fanning,
filed a petition asserting legal theories of negligence and breach of contract against a defendant corporation who operated a long-term
nursing care facility. 2004 OK 7, ¶22, 85 P.3d
841. She later sought to amend her petition in
order to pierce the corporate veil and hold the
corporate shareholders liable for the obligations and conduct of the corporation. Id. at ¶17.
The shareholders moved to dismiss simply
1218
stating the general rule is that a shareholder is
a separate entity that cannot be liable for the
negligent acts of the corporation. Id. at ¶18. The
trial court dismissed the case and the Oklahoma Court of Civil Appeals (COCA) affirmed.
Id. This Court vacated COCA’s opinion and
affirmed in part and reversed in part the trial
court’s decision as well as remanded the matter to the trial court for further proceedings. We
noted, Oklahoma became a notice pleading
state in 1984 with the adoption of the Oklahoma Pleading Code, 12 O.S., § 2001 et seq. Id. at
¶19. Under the Pleading Code, Fanning was
only required to set forth a short and plain
statement of her claims so that the defendants
would have fair notice of her claims and the
grounds upon which they rest. Id. at ¶21. We
determined she had given the defendants fair
notice of her claims and the grounds upon
which they rest. Id. at ¶22. We held that based
upon the theories Fanning had asserted she
must be afforded an opportunity to complete
discovery so that the court will have a fully
developed factual record to determine the
issue. Id. We further determined “[a]t this stage
of the proceedings it does not appear beyond a
doubt that Fanning can prove no set of facts in
support of her theories of recovery.” We, however, did not determine whether Fanning
would prevail on her claims and provided the
litigants must rely on summary judgment and
control of discovery to weed out unmeritorious
claims. Id. at ¶¶21-22.
¶9 Although this case does not concern a
motion to dismiss, the logic in Fanning is applicable. Here Petitioner has made allegations of
direct negligence against the proposed defendants and stated such direct claims will be
properly alleged and proven. If such allegations had been made in her original petition
they would have amounted to a cognizable
legal theory and provided fair notice as well as
grounds upon which her claims rest. The trial
court decided the merits without affording
Petitioner an opportunity for discovery to
develop her claims. We find this was error and
warrants the granting of a Writ of Prohibition
to prevent the trial court from enforcing its
January 21, 2016, order.
¶10 Petitioner has also requested this Court
to issue a Writ of Mandamus ordering Respondent to allow Petitioner to amend her Petition
and add the proposed additional defendants.
Here, the parties concede that the statute of
limitations has expired against these proposed
defendants. The Nursing Home asserts the
The Oklahoma Bar Journal
Vol. 87 — No. 17 — 6/25/2016
claims against the proposed defendants do not
relate back to Petitioner’s original Petition. The
dispositive issue then rests upon whether the
“relation back” provisions of 12 O.S. 2011, §
2015 (C) have been met. This subsection provides:
C. RELATION BACK OF AMENDMENTS.
An amendment of a pleading relates back
to the date of the original pleading when:
1. Relation back is permitted by the law
that provides the statute of limitations
applicable to the action; or
2. The claim or defense asserted in the
amended pleading arose out of the conduct, transaction, or occurrence set forth or
attempted to be set forth in the original
pleading; or
3. The amendment changes the party or the
naming of the party against whom a claim
is asserted if paragraph 2 of this subsection
is satisfied and, within the period provided
by subsection I of Section 2004 of this title
for service of the summons and petition,
the party to be brought in by amendment:
a. has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the
merits; and
b. knew or should have known that, but for
a mistake concerning the identity of the
proper party, the action would have been
brought against him. An amendment to add
an omitted counterclaim does not relate
back to the date of the original answer.
The delivery or mailing of process to the
Attorney General of Oklahoma, or an agency or officer who would have been a proper
defendant if named, satisfies the requirements of subparagraphs a and b of this paragraph with respect to the State of Oklahoma
or any agency or officer thereof to be brought
into the action as a defendant.
Title 12 O.S. 2011, § 2015 (C).
The trial court made no ruling concerning this
section of law. In order to determine whether
the proposed defendants can be added the trial
court will need to make a ruling concerning the
relation back doctrine found in 12 O.S. 2011, §
2015 (C). We therefore deny the request for a
Writ of Mandamus and remand this matter for
further proceedings consistent with this opinion.
APPLICATION TO ASSUME ORIGINAL
JURISDICTION GRANTED; WRIT OF
Vol. 87 — No. 17 — 6/25/2016
PROHIBITION GRANTED; WRIT OF
MANDAMUS DENIED.
ALL JUSTICES CONCUR
COMBS, V.C.J.
1. At the time the subject cause of action arose, January 2011, this
statute read as follows:
Judgment may be given for or against one or more of several
plaintiffs, and for or against one or more of several defendants;
it may determine the ultimate rights of the parties on either side,
as between themselves, and it may grant to the defendant any
affirmative relief to which he may be entitled. In an action
against several defendants, the court may, in its discretion, render judgment against one or more of them, leaving the action to
proceed against the others whenever a several judgment may be
proper. The court may also dismiss the petition with costs, in
favor of one or more defendants, in case of unreasonable neglect
on the part of the plaintiff to serve the summons on other defendants, or proceed in the cause against the defendant or defendants served.
12 O.S. 2011, § 682.
Subsections B -E were added in 2013, and provide the provisions
relied upon by the Nursing Home and the Court. In Petitioner’s
Notice of Supplemental Authority filed on April 19, 2016, she
cites to an unpublished opinion of the Oklahoma Court of Civil
Appeals to support a new theory that the 2013 amendments are
not applicable to this case because they are substantive rather
than procedural amendments which were enacted after the cause
of action arose. Okla. Sup.Ct. R. 1.200 (C) (5) provides in pertinent part:
unpublished opinions are deemed to be without value as
precedent and are not uniformly available to parties, opinions
so marked shall not be considered as precedent by any court
or cited in any brief or other material presented to any court,
except to support a claim of res judicata, collateral estoppel, or
law of the case.
For the purposes of determining extraordinary relief, we do not
need to make a decision as to whether or not subsection B of §
682 is procedural or substantive at this time, especially in light of
the fact such argument was never presented to the district court
and the unpublished opinion should never have been cited by
the Petitioner in her brief.
2. Title 12 O.S. 2011, § 2015 (A) provides:
A party may amend his pleading once as a matter of course at
any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the
action has not been placed upon the trial calendar, he may so
amend it at any time within twenty (20) days after it is served.
Amendments to add omitted counterclaims or to add or drop
parties may be made as a matter of course within the time specified above. Otherwise a party may amend his pleading only by
leave of court or by written consent of the adverse party; and
leave shall be freely given when justice so requires. A party shall
respond to an amended pleading within the time remaining for
response to the original pleading or within ten (10) days after the
service of the amended pleading, whichever period may be longer, unless the court otherwise orders.
2016 OK 63
IN THE MATTER OF THE SUSPENSION
OF MEMBERS OF THE OKLAHOMA BAR
ASSOCIATION FOR NONPAYMENT OF
2016 DUES
SCBD No. 6395. June 6, 2016
ORDER OF SUSPENSION FOR
NONPAYMENT OF 2016 DUES
On May 23, 2016, the Board of Governors of
the Oklahoma Bar Association filed an Application for the suspension of Oklahoma Bar
The Oklahoma Bar Journal
1219
Association members who failed to pay dues
for the year 2016 as required by the Rules Creating and Controlling the Oklahoma Bar Association (Rules), 5 O.S. 2011, ch. 1, app. 1, art.
VIII, §1. The Board of Governors recommended that the members whose names appear on
the Exhibit A attached to the Application be
suspended from membership in the Oklahoma
Bar Association and from the practice of law in
the State of Oklahoma, as provided by the
Rules, 5 O.S. 2011, ch. 1, app. 1, art. VIII, §2.
This Court finds that on April 15, 2016, the
Executive Director of the Oklahoma Bar Association notified by certified mail all members
delinquent in the payment of dues and/or
expense charges to the Oklahoma Bar Association for the year 2016. The Board of Governors
have determined that the members set forth in
Exhibit A, attached hereto, have not paid their
dues and/or expense charges for the year as
provided in the Rules.
This Court, having considered the Application of the Board of Governors of the Oklahoma Bar Association, finds that each of the
Oklahoma Bar Association members named on
Exhibit A, attached hereto, should be suspended from the Oklahoma Bar Association membership and shall not practice law in the State
of Oklahoma until reinstated.
IT IS THEREFORE ORDERED that the attorneys named on Exhibit A, attached hereto, are
hereby suspended from membership in the
Association and prohibited from the practice of
law in the State of Oklahoma for failure to pay
membership dues for the year 2016 as required
by the Rules Creating and Controlling the
Oklahoma Bar Association.
DONE BY ORDER OF THE SUPREME
COURT IN CONFERENCE THIS 6TH DAY OF
JUNE, 2016.
/s/ John F. Reif
CHIEF JUSTICE
Alexander Louis Bednar, OBA No. 19635
3030 N.W. Expressway, Ste. 200
Oklahoma City, OK 73112
Dionna Dawn Bierbaum, OBA No. 18040
2026 Glenco Terr.
Fort Worth, TX 76110
Leon Douglas Bragg Jr., OBA No. 22780
1709 Chamblee Dr.
Norman, OK 73071
Alan Charles Buckner, OBA No. 17273
14340 Torrey Chase Blvd., Ste. 240
Houston, TX 77014
Jonathan Nathaneal Carter, OBA No. 31329
6803 S. Western, Suite 405
Oklahoma City, OK 73139
Edward Jefferies Clarke, OBA No. 18675
511 Couch Dr., Ste. 300
Oklahoma City, OK 73102-2250
Jane Ann Cobb, OBA No. 10247
P.O. Box 52338
Tulsa, OK 74152
Donna M. Copeland, OBA No. 14992
2904 South 21st Street
Fort Smith, AR 72901
John Michael Curney, OBA No. 19984
411 Heimer Rd.
San Antonio, TX 78232-4854
John Jay Dalton, OBA No. 15381
4050 E. 53rd St.
Tulsa, OK 74135
Samuel J. Demaio, OBA No. 20921
10000 N. Central Expy., Ste. 400
Dallas, TX 75231
Adam Scott Denton, OBA No. 17015
2777 N. Stemmons Freeway, Suite 1157
Dallas, TX 75207-2506
Brian Dean Dill, OBA No. 15989
18668 Gibbons Drive
Dallas, TX 75287
ALL JUSTICES CONCUR.
EXHIBIT A
(DUES - SUSPENSION)
Mary Shannan Arbabi, OBA No. 16562
1001 Montgomery Pl.
Lucas, TX 75002-3710
Patricia Ann McIntyre Espedal,
OBA No. 17303
Murgata 15
4008 Stavanger
NORWAY
Kelly Marie Baldrate, OBA No. 21457
713 Custer Avenue
Evanston, IL 60202
Lori Christine Fisher, OBA No. 30553
15 Paloma Ave., #22
Venice, CA 90291
1220
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Vol. 87 — No. 17 — 6/25/2016
Danielle Elizabeth Gentges, OBA No. 19100
1517 S. Newport
Tulsa, OK 74120
Stephanie Michelle Lorance, OBA No. 22633
217 N. Harvey, Ste. 406
Oklahoma City, OK 73102
Tiffany Lynn Grant, OBA No. 22915
2215 Westgate Plaza
Grapevine, TX 76051
Jason Heath Meadows, OBA No. 22236
550 Centre Street, Apt. C-3
Nutley, NJ 07110
Julie Helene Hall, OBA No. 16243
3743 S. Knoxville
Tulsa, OK 74135
Thomas Michael Moratto Jr., OBA No. 31158
2320 Belleview Dr.
Oklahoma City, OK 73112
Elizabeth Anne Hart, OBA No. 18245
1654 Merton Court
Windsor, CO 80550
Michael Gaylon Parkinson, OBA No. 17189
4050 Reserve Pt.
Colorado Sprgs, CO 80904-1043
Michael Hatfield, OBA No. 30578
143 Lighthouse Drive
Jonestown, PA 17038
Robert C. Payden, OBA No. 6980
P.O. Box 690312
Tulsa, OK 74169-0312
Gary Leonard Trent Himes, OBA No. 10336
2201 E. 27th St.
Tulsa, OK 74114-4241
Faith Marie Phillips, OBA No. 21030
P.O. Box 213
Proctor, OK 74457
Michael Ronald Hooper, OBA No. 22358
P.O. Box 2134
Frisco, TX 75034
Brian Edward Powley, OBA No. 17691
7628 N.W. 101st St.
Oklahoma City, OK 73162-5301
Christina Sue Jackman, OBA No. 30387
6600 S.E. 74th St., Unit 5101
Oklahoma City, OK 73135
Robert Lee Raasch, OBA No. 16292
101 S. Country Club Rd., Apt. G1
Muskogee, OK 74403
Brenda B. Johnson, OBA No. 1816
5100 N. Classen, Ste. 110
Oklahoma City, OK 73118
Duane Norman Rasmussen, OBA No. 7420
886 E. Dempsey Dr.
Hayden, ID 83835-9595
Noah Douglas Johnson, OBA No. 32026
8815 Audrie Rae Ln.
Cypress, TX 77433
Jill E. Redwine, OBA No. 30923
3012 Hickory Stick Rd.
Oklahoma City, OK 73102
Joseph John Jordan, OBA No. 19998
4113 Silverton Circle
Norman, OK 73072
Brandi Dawn Robertson, OBA No. 21338
P. O. Box 140076
Broken Arrow, OK 74014
John Howard Kizer, OBA No. 14761
1903 E. Battlefield Rd.
Springfield, MO 65804
Telisa Webb Schelin, OBA No. 18302
17300 Dallas Pkwy., Ste. 1010
Dallas, TX 75248
Caroline Bouscaren Lapish, OBA No. 31784
401 S. Boston, Ste. 2900
Tulsa, OK 74103
Jeffrey Daniel Shelton, OBA No. 31305
210 Park Ave., Suite 1140
Oklahoma City, OK 73102
Mary Jean Little, OBA No. 15804
4018 E. 42nd Pl.
Tulsa, OK 74135
Helen Shin, OBA No. 18466
411 Emerald Ave., Apt. 1
El Cajon, CA 92020
Stephen Alan Littlefield, OBA No. 11608
3815 Caleb Lane
Missouri City, TX 77459
Leona Irene Shoffit, OBA No. 19570
418 Sunset Drive
Hereford, TX 79045
Courtney Jennifer London, OBA No. 31403
525 South Main St., 12th Floor
Tulsa, OK 74103
Michael Wayne Simpson, OBA No. 15617
P.O. Box 1011
Fort Defiance, AZ 86504
Vol. 87 — No. 17 — 6/25/2016
The Oklahoma Bar Journal
1221
Kyle Austin Smith, OBA No. 17902
35 Fraiser Fir Pl.
The Woodlands, TX 77389
Shannon Deanne Smith, OBA No. 17346
819 Willard Street
Frederick, OK 73542
Nathaniel Keith Soderstrom, OBA No. 30431
346343 East 904 Road
Chandler, OK 74834
Robert Mark Stout, OBA No. 13786
12221 Bunting Cir.
Edmond, OK 73013-0486
Thomas R. Swise, OBA No. 8805
501 N.W. 40th St
Oklahoma City, OK 73118
Worth Irvin Thornton, OBA No. 31796
8612 Piney Creek Bend
Austin, TX 78745
Eric Richard Thorsen, OBA No. 30931
7740 E. 30th Pl.
Tulsa, OK 74129
Amber L. Willingham, OBA No. 16772
5811 Hawthorne Garden Way
Katy, TX 77494
Rebecca Sellers Woodward, OBA No. 8070
10607 James Court
Sapulpa, OK 74066
This Court finds that on March 15, 2016, the
Executive Director of the Oklahoma Bar Association mailed, by certified mail to all Oklahoma
Bar Association members not in compliance
with Rules 3 and 5 of the MCLE Rules, an Order
to Show Cause within sixty days why the member’s membership in the Oklahoma Bar Association should not be suspended. The Board of
Governors determined that the Oklahoma Bar
Association members named on Exhibit A of its
Application have not shown good cause why
the member’s membership should not be suspended.
This Court, having considered the Application of the Board of Governors of the Oklahoma Bar Association, finds that each of the
Oklahoma Bar Association members named on
Exhibit A, attached hereto, should be suspended from Oklahoma Bar Association membership and shall not practice law in this state
until reinstated.
IT IS THEREFORE ORDERED that the attorneys named on Exhibit A, attached hereto, are
hereby suspended from membership in the
Association and prohibited from the practice of
law in the State of Oklahoma for failure to comply with the MCLE Rules for the year 2015.
Hilary I. Zarrow, OBA No. 10535
900 Mid-Continent Tower
401 S. Boston Ave.
Tulsa, OK 74103-4016
2016 OK 64
IN THE MATTER OF THE SUSPENSION
OF MEMBERS OF THE OKLAHOMA BAR
ASSOCIATION FOR NONCOMPLIANCE
WITH MANDATORY CONTINUING
LEGAL EDUCATION REQUIREMENTS
FOR THE YEAR 2015
SCBD No. 6396. June 6, 2016
ORDER OF SUSPENSION FOR FAILURE
TO COMPLY WITH THE RULES FOR
MANDATORY CONTINUING LEGAL
EDUCATION
On May 23, 2016, the Board of Governors of
the Oklahoma Bar Association filed an Application for the suspension of members who
failed to comply with mandatory legal education requirements for the year 2015 as required
1222
by Rules 3 and 5 of the Rules for Mandatory
Continuing Legal Education (MCLE Rules), 5
O.S. 2011, ch. 1, app. 1-B. The Board of Governors recommended the members, whose names
appear on Exhibit A attached to the Application,
be suspended from membership in the Oklahoma Bar Association and prohibited from the
practice of law in the State of Oklahoma, as provided by Rule 6 of the MCLE Rules.
DONE BY ORDER OF THE SUPREME
COURT IN CONFERENCE THIS 6TH DAY OF
JUNE, 2016.
/s/ John F. Reif
CHIEF JUSTICE
ALL JUSTICES CONCUR
EXHIBIT A
(MCLE - SUSPENSION)
Alexander Louis Bednar, OBA No. 19635
3030 N.W. Expressway, Ste. 200
Oklahoma City, OK 73112
Leon Douglas Bragg Jr., OBA No. 22780
1709 Chamblee Dr.
Norman, OK 73071
The Oklahoma Bar Journal
Vol. 87 — No. 17 — 6/25/2016
Michael Burleson Bush, OBA No. 21123
The Public Finance Law Group, PLLC
5657 N. Classen Blvd.
Oklahoma City, OK 73118
Elizabeth Riley Castleberry, OBA No. 10460
1755 W. 33rd Street, Ste. 100
Edmond, OK 73013
John Michael Curney, OBA No. 19984
411 Heimer Rd.
San Antonio, TX 78232-4854
Christopher Wallace Lawyer, OBA No. 31927
10919 Micalet Court
San Antonio, TX 78249
Stephanie Michelle Lorance, OBA No. 22633
217 N. Harvey, Ste. 406
Oklahoma City, OK 73102
David Charles Mainprize, OBA No. 30779
1721b W. Easton St.
Tulsa, OK 74127
John Jay Dalton, OBA No. 15381
4050 E. 53rd St.
Tulsa, OK 74135
Nathan Andrew McCaffrey, OBA No. 20090
112 N.E. Fourth St.
P.O. Box 1739
Guymon, OK 73942
Jared Ray Ellis, OBA No. 30070
P.O. Box 2152
Lawton, OK 73502-2152
Scott Ford McKinney, OBA No. 16692
12216 Banyan Lane
Oklahoma City, OK 73162
Marco Dax Flores, OBA No. 31913
901 Main St., Suite 3500
Dallas, TX 75202
Charles Lee Mullens III, OBA No. 22659
3201 Preston Drive
Oklahoma City, OK 73122
Shanita Danielle Gaines, OBA No. 30796
P.O. Box 298
Oklahoma City, OK 73101-0298
Brian Edward Powley, OBA No. 17691
7628 N.W. 101st St.
Oklahoma City, OK 73162-5301
James Martin Graves, OBA No. 16657
P.O. Box 3618
Fayetteville, AR 72702
Robert Lee Rabon, OBA No. 13523
402 E. Jackson
P.O. Box 726
Hugo, OK 74743
Lenora Michelle Gulley, OBA No. 30378
212 North Fourth Street
Muskogee, OK 74403
John Christopher Hastings, OBA No. 14735
7917 South 72nd East Ave.
Tulsa, OK 74133
Robert Baker Highsaw Jr., OBA No. 4193
8201 S. Walker Ave.
Oklahoma City, OK 73139-9451
Steven Erik Hjelm, OBA No. 17230
9010 S. Darlington Ave.
Tulsa, OK 74137
Laure M. Resides, OBA No. 19521
P.O. Box 96812
Oklahoma City, OK 73143-6812
Jeff Michael Roberts, OBA No. 22287
11717 North Morgan Rd.
Yukon, OK 73099
Brandi Dawn Robertson, OBA No. 21338
P. O. Box 140076
Broken Arrow, OK 74014
Nomaan K. Husain, OBA No. 30963
5858 Westheimer Rd., Ste. 400
Houston, TX 77057-5644
Laura Roxanne Emory Johns, OBA No. 31603
2901 N. Classen Blvd., Suite 112
Oklahoma City, OK 73106
Noah Douglas Johnson, OBA No. 32026
8815 Audrie Rae Ln.
Cypress, TX 77433
Vol. 87 — No. 17 — 6/25/2016
Jill E. Redwine, OBA No. 30923
3012 Hickory Stick Rd.
Oklahoma City, OK 73102
Jeffrey Daniel Shelton, OBA No. 31305
210 Park Ave., Ste. 1140
Oklahoma City, OK 73102
Lorin Marc Subar, OBA No. 31296
10440 N. Central Expy., Suite 520
Dallas, TX 75231
Leslie Dillon Thomas, OBA No. 31794
9191 Siegen Lane, Ste. 5B
Baton Rouge, LA 70810
The Oklahoma Bar Journal
1223
2016 OK 65
LOGAN COUNTY CONSERVATION
DISTRICT, An Oklahoma conservation
district, Petitioner/Appellee, v. PLEASANT
OAKS HOMEOWNERS ASSOCIATION,
PHYLLIS JEAN CROWDER and JOHN
HERMAN WHITE, JR., Respondents/
Appellants, and PLEASANT OAKS LAKE
ASSOCIATION INC.; PLEASANT OAKS
HOMEOWNERS ASSOCIATION; PHYLLIS
CROWDER; JOHN HERMAN WHITE, JR.;
DALE BROOMFIELD; SUSAN
BROOMFIELD; MICHAEL BRADLEY
BROOMFIELD; EARL B. ENGLAND;
KATHY K. ENGLAND; NORBERT K.
WENGER; MICHAEL D. FAIRLESS;
WANDA E. FAIRLESS; QUAYYUM QAISAR
JALIL AND TASNIM RAZIA BEGUN
REVOCABLE TRUST DATED OCTOBER
12, 2005; DONOVAN R. UNDERWOOD;
MARION WALTON; LEON WALTON;
CHARLES C. LINHARDT; JENNIFER D.
LINHARDT; GEORGE SCOTT WELLS;
MARILYN ELKINS WELLS; ED BETCHAN;
ERICKA BETCHAN; WILLIAM JACK
SKAGGS; WINONA L. SKAGGS
REVOCABLE TRUST; ERWIN DALE
LEAVERTON; THELMA J. LEAVERTON;
WILLIAM LOUIS KEEL; DANNY CLINE;
THOMAS EUGENE PLUNKETT; CARLA R.
PLUNKETT; JAY W. BARNETT; TASA C.
BARNETT, Respondents.
Case No. 113,313; Comp. w/113,318
June 7, 2016
APPEAL FROM THE DISTRICT COURT OF
LOGAN COUNTY, STATE OF
OKLAHOMA, HONORABLE
PHILLIP C. CORLEY
¶0 Homeowners and Homeowners Association appealed from a judgment finding Conservation District was authorized to enter properties to perform rehabilitation work on a floodwater control structure. Construction of the
dam was originally completed in 1973. In
approximately 2006, the dam was reclassified
as a greater safety risk, necessitating rehabilitation work. Easements authorized the Conservation District to construct, operate, maintain,
and inspect the dam. Plain language in the
deeds creating the easements included a right
to ensure the dam’s structural integrity through
a rehabilitation project.
1224
TRIAL COURT’S JOURNAL ENTRY OF
JUDGMENT IS AFFIRMED
Stephen L. McCaleb, Derryberry & Naifeh,
Oklahoma City, Oklahoma, Appellants Phyllis
Jean Crowder and John Herman White, Jr.
Lou Keel, 105 N. Hudson, Suite 300, Oklahoma
City, Oklahoma, Appellant Pleasant Oaks Lake
Association, Inc., Kelly F. Monaghan and Lori
Gilliard, Holloway & Monaghan, Tulsa, Oklahoma, Appellee Logan County Conservation
District
GURICH, J.
Factual Background & Procedural History
¶1 Cottonwood Creek watershed is an area
covering approximately 379 square miles in
parts of Logan, Oklahoma, Canadian and
Kingfisher Counties. The area was prone to
flooding, and in March of 1962, Logan County
Soil and Water Conservation District No. 9
(LCSWCD), Cottonwood Creek Water and Soil
Conservancy District No. 11 (CCWSCD), and
the United States Department of Agriculture
(USDA), prepared a plan to alleviate dangers
associated with uncontrolled water flow. Proposed structural measures under the plan
included construction of fifty-eight floodwater
retarding structures designed to detain water,
store sediment deposits, and enhance the
state’s water supply. One of the structures
included in the work plan was Floodwater
Retarding Structure No. 54 (FWRS 54).
¶2 On September 24, 1962, D.C. Fitzwater
and Odessa Ann Fitzwater granted an easement (Fitzwater Easement) to CCWSCD and
LCSWCD, which read, in part:
[F]or the purpose of:
For or in connection with the construction,
operation, maintenance and inspection of
the following described works of improvement to be located on the above described
land; for the flowage of any waters in, over,
upon or through such works of improvement; and for the permanent storage and
temporary detention, either or both, of any
waters that are impounded, stored or
detained by such works of improvement:
a. floodwater retarding structure No.
54[.]
1. In the event construction of the above
described works of improvement is not
commenced within 120 months from the
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Vol. 87 — No. 17 — 6/25/2016
date hereof, the rights and privileges herein granted shall at once revert to and
become the property of this Grantor, his
heirs and assigns.
2. This easement includes the right of
ingress and egress at any time over and
upon the above described land of the
Grantor and any other land of the Grantor
adjoining said land for the purpose of construction, the checking of operations, and
the inspection and maintenance of the
structure.
3. There is reserved to the Grantor, his heirs
and assigns, the rights and privileges to
use the above described land at any time,
in any manner and for any purpose that
does not interfere with construction, operation, maintenance and inspection of the
structure.
....
5. The Grantee is responsible for operating
and maintaining the above described
works of improvement.
....
The Fitzwater Easement covered the NW ¼ of
Section 36, Township 15 North, Range 3 West.
Additional easements were obtained from several landowners in the area for the purpose of
water storage (Impoundment Easements). The
Impoundment Easements encompassed the
same tract of land and authorized the following usage:
[F]or the purpose of:
For the permanent storage and temporary
detention, either or both, of any waters that
are impounded, stored or detained by those
certain works of improvement which are
described and are to be located as follows:
a. floodwater retarding structure No.
54[.]
Aside from geographical boundaries, neither
the Fitzwater nor Impoundment deeds contained mandatory design specifications for
FWRS 54.1 Logan County Conservation District
(LCCD) was created in 1971, and became the
successive owner of the easements.
¶3 Construction of FWRS 54 was finalized in
November of 1973. At the time of its completion, FWRS 54 was classified as a significant
hazard class (b) dam, which indicates unconVol. 87 — No. 17 — 6/25/2016
trolled flooding could cause significant damage to agriculture and infrastructure.
¶4 In 1977, LCSWCD executed a deed returning part of the Fitzwater and Impoundment
Easements to the current servient estate holders.2 Several homes have since been built
around what is referred to by local residents as
Pleasant Oaks Lake. The impounded water created by FWRS 54 is approximately 22-acres.
Local residents built a common recreational
ground and concrete boat ramp.
¶5 Changes in safety criteria and the development of houses downstream compelled the
USDA and Oklahoma Water Resources Board
(OWRB) to recast FWRS 54 as a high hazard
class (c) dam.3 This new classification was
based on changes in safety criteria, the development of 26 houses downstream, and the
potential for loss of life following a structural
failure. In March of 2006, the USDA issued a
written proposal calling for the rehabilitation
of FWRS 54. The USDA watershed plan suggested multiple repairs and improvements to
FWRS 54, including: (1) removal of the existing
principal spillway tower; (2) construction of a
new principal spillway tower; (3) replacement
of the existing principal spillway outlet; (4)
replacement of the existing principal spillway
conduit; (5) installation of an impact basin at
the pipe outlet; (6) construction of an outlet
channel; (7) construction of a vegetated wave
berm; (8) and extension of the auxiliary spillway with a slope change in the exit channel. In
approximately February 2008, LCCD tendered
a written application to the OWRB seeking
authorization to perform rehabilitation work
on FWRS 54 as recommended by the 2006
USDA work plan. OWRB approved the application on March 11, 2008.
¶6 On March 25, 2011, LCCD filed a petition
with the District Court of Logan County, seeking a declaratory judgment allowing it to perform rehabilitation work on FWRS 54. The
petition alleged the Fitzwater and Impoundment Easements vested LCCD with the right to
complete the rehabilitation project. Property
owners Phyllis Jean Crowder and John Herman White, Jr. answered and claimed that the
proposed work did not fall within the scope of
the original easements. Accordingly, Crowder
and White maintained the rehabilitation project would lead to an improper taking of their
land. Pleasant Oaks Lake Association (POLA)
and individual homeowners also answered,
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1225
alleging the project would constitute a taking
requiring payment of compensation.
¶7 On April 11, 2012, LCCD filed a motion
seeking summary judgment. The motion
asserted LCCD was authorized to perform
work on FWRS 54 based upon the unambiguous language contained in deeds establishing
the Fitzwater and Impoundment Easements.
LCCD maintained that the intended purpose
of the easements, and the terms “construction,
operation, maintenance and inspection,” authorize the district to rehabilitate FWRS 54. Consequently, LCCD claimed there could be no taking
of private property entitling Respondents to
compensation. LCCD’s motion included a sworn
affidavit from a professional engineer to demonstrate all rehabilitation efforts would take place
entirely within the area described in the Fitzwater and Impoundment Easements.4 Respondents
filed a joint objection to LCCD’s motion and
contemporaneously requested summary judgment be issued in their favor. POLA and the
homeowners argued the terms “operation and
maintenance” contained in the deeds were not
synonymous with the proposed rehabilitation
of FWRS 54. However, the objection did not
include any evidentiary material to refute
LCCD’s allegations of material facts. The sole
attachments to the motion were a trial court
order and a subsequent opinion from the Court
of Civil Appeals from an unrelated case.5 These
decisions found a similar rehabilitation proposal in Sequoyah County was broader in
scope than permitted by the original easement.
On October 31, 2012, the trial judge denied
both summary judgments.
¶8 POLA and individual homeowners
renewed their motions for summary judgment
on March 14, 2014. In their supporting brief,
POLA claimed that by emptying the lake,
LCCD’s actions would kill fish, eliminate wildlife, and devastate the quality of life for the
homeowners for an unknown length of time.
POLA also alleged that rehabilitation of FWRS
54 would cause “real and valid damage” to the
homeowners’ property. Once more, POLA provided no scientific or other evidence to support
these contentions.6 In a separate motion,
Respondents Crowder and White also sought
partial summary judgment. Their motion
included an affidavit alleging that nineteen of
the twenty-one lots in their possession were
within the boundaries of the easement and
would “likely be affected by the rehabilitation.” Crowder and White further argued Peti1226
tioner had no right to trespass on their land to
perform reconstruction work on FWRS 54. The
motion was based upon pure speculation and
did not include any scientific or other evidence
to refute the alleged scope of the easements or
how the project would “affect” their properties.
¶9 LCCD filed objections to the respective
motions. Therein, LCCD reasserted its contentions: (1) the properties were subject to the
Fitzwater and Impoundment Easements; and
(2) the proposed rehabilitation on FWRS 54
was within the scope of the original instruments. LCCD maintained the trial court, in its
previous ruling, had improperly relied on
extrinsic evidence to interpret the unambiguous deeds. LCCD further suggested legislation
adopted in 2008 demonstrated the terms operation and maintenance include necessary
repairs or rehabilitation work on flood control
structures in Oklahoma.7 Finally, LCCD alleged
the easements imposed no obligation to maintain the reservoir at a specific water level.
¶10 On July 21, 2014, the trial court held a
hearing and denied Respondents’ motions for
summary judgment. However, after reconsidering his previous order, the trial judge sustained LCCD’s motion for summary judgment.
In the September 19, 2014 Journal Entry of
Judgment, the trial judge concluded 27A
O.S.Supp. 2008 § 3-3-411 “was intended by the
legislature to be applied retroactively and such
intent is necessarily implied from the language
used in the statute.”8 Accordingly, the lower
court ruled LCCD had the right under the Fitzwater and Impoundment Easements to perform rehabilitation work on the dam; and
therefore, LCCD had no obligation to tender
compensation or maintain the lake water level.
¶11 On October 17, 2014, Respondents
Crowder and White filed a Petition in Error in
Case No. 113,313. On October 20, 2014, Respondents POLA and individual homeowners filed
a Petition in Error in Case No. 113,318. We
issued an order making the two proceedings
companion cases. LCCD filed a motion requesting the proceeding be retained, which we
granted.
Standard of Review
¶12 Whether summary judgment was properly granted is a question of law subject to de
novo review. Benefiel v. Boulton, 2015 OK 32, ¶
10, 350 P.3d 138, 142). We must determine
whether the “trial court erred in its application
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Vol. 87 — No. 17 — 6/25/2016
of the law and whether there is any genuine
issue of material fact.” Kluver v. Weatherford
Hosp. Auth., 1993 OK 85, ¶14, 859 P.2d 1081,
1084). To determine the presence or absence of
a genuine issue of material fact, inferences
derived from evidentiary materials must be
viewed in a light most favorable to the nonmoving party. Wood v. Mercedes-Benz of Okla.
City, 2014 OK 68, ¶ 4, 336 P.3d 457, 459.
purposes and to allow enjoyment of the rights
bestowed by the easement. Burkhart v. Jacob,
1999 OK 11, ¶ 11, 976 P.2d 1046, 1049; see also
Restatement (Third) of Prop., Servitudes §§
4.10, Comment c (2000). Neither party may
utilize the property in a manner which interferes with or unduly burdens the rights of the
other. Restatement (Third) of Prop, Servitudes
§§ 4.9 - 4.10 (2000).
Analysis
¶15 When property rights originate by deed,
the scope of those rights should be construed
in the same manner as other written contracts.
Beattie v. State ex rel. Grand River Dam Auth.,
2002 OK 3, ¶ 8, 41 P.3d 377, 380. Of paramount
concern is the intention of the parties at the
time of the original conveyance. Pub. Serv. Co.
of Okla. v. Home Builders Ass’n of Realtors,
Inc., 1976 OK 120, ¶ 6, 554 P.2d 1181, 1184. If a
written instrument creating an easement “is
plain and unambiguous, and there is no uncertainty therein, the intent of the parties is to be
determined by the language of the written
instrument alone.” Beattie, ¶ 12, 41 P.3d at 382;
Johnson v. Butler, 1952 OK 207, ¶ 6, 245 P.2d
720, 722. Words “’must be viewed in the context of the contract and must be given [their]
plain ordinary meaning.’” Lucas v. Bishop,
1998 OK 16, ¶ 11, 956 P.2d 871, 874. An agreement is only considered ambiguous if it is susceptible to different interpretations; but courts
should refrain from creating an ambiguity by
“using a forced or strained construction, by
taking a provision out of context, or by narrowly focusing on [a] provision.” Osprey L.L.C.
v. Kelly-Moore Paint Co., Inc., 1999 OK 50, ¶
14, 984 P.2d 194, 199. Only when the contractual document is unclear or inconsistent may
courts utilize extrinsic evidence to ascertain
intent. Beattie, ¶ 12, 41 P.3d at 382.
¶13 The issue presented on appeal is whether the language in the original Fitzwater and
Impoundment Easements authorize LCCD to
enter the Respondents’ property to perform
rehabilitation work on FWRS 54 without payment of compensation. The original easements
were created by deed. According to the terms
of the deed creating the Fitzwater Easement,
grantee was authorized to construct, operate,
maintain, and inspect FWRS 54. Additionally,
the conveying instruments provided the grantee with the right of “ingress and egress. . .over
and upon the [subject property]. . .for the purpose of construction, the checking of operations, and the inspection and maintenance of
[FWRS 54].” Most important, the deed expressly imposed a duty on the grantee to ensure
FWRS 54 was in proper repair and functioning
safely, by specifying “[t]he Grantee is responsible for operating and maintaining [FWRS 54].”
(emphasis added). The instruments creating the
Impoundment Easements provided the right to
utilize the property for “permanent storage or
temporary detention” of water brought about
through the construction of FWRS 54. They also
afforded the same basic rights and privileges as
the Fitzwater Easement.
¶14 An easement creates a legal relationship
between two parties. The easement holder is
referred to as the dominant estate; and the
owner of land subject to an easement is known
as the servient estate. Bouziden v. Alfalfa Elec.
Coop., Inc., 2000 OK 50, ¶ 16, n.10, 16 P.3d 450,
456. An easement affords its titleholder a limited non-possessory right to use a parcel of
land for a specific purpose. Restatement (Third)
of Prop., Servitudes § 1.2 (1) (2000); see also
Kraettli Q. Epperson, 5A Vernon’s Okla. Forms
2d, Real Estate § 4.100 (2d ed. 2015). An easement may be created via deed, by implication,
or through prescriptive use. Head v. McCracken, 2004 OK 84, ¶ 11, 102 P.3d 670, 676. The
owner of an easement may utilize the servient
estate in such a manner that is reasonably necessary to carry out the servitude’s intended
Vol. 87 — No. 17 — 6/25/2016
¶16 In the present case, the deeds creating
the Fitzwater and Impoundment Easements
authorized use of the subject real property to
construct FWRS 54. The deeds also authorized
the grantee, its successors and assigns, to enter
the property for the purposes of “the checking
of operations, and the inspection and maintenance of the structure.” But the deeds did
much more than permit these actions, they also
obligated LCCD to operate and maintain FWRS
54 to ensure it was in good repair and serving
its intended purpose. The critical terms contained in the easements are not words of limitation; but instead provide broad rights to
allow the grantee and its successors to carry
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1227
out acts necessary to ensure the integrity of
FWRS 54 and the safety of the public.
¶17 This Court has previously considered
the terms “operation” and “maintenance” for
purposes of statutory interpretation and concluded words should be read utilizing ordinary meanings unless contrary to the intent
and purpose of the statute. Medina v. State,
1993 OK 121, ¶¶ 6-7, 871 P.2d 1379, 1382; see
also Heath v. Guardian Interlock Network,
Inc., 2016 OK 18, ¶ 16, __ P.3d __ (recognizing
“maintenance means the upkeep of property or
equipment and maintain means to keep in
good condition by making repairs, correcting
problems, etc.”).
¶18 Respondents argue that 27 O.S.Supp.
2008 § 3-3-411 cannot be applied retroactively
to interpret the Fitzwater and Impoundment
deeds. At the time the parties executed the
Fitzwater and Impoundment Easements, the
Conservancy Act of Oklahoma (82 O.S. 1961 §
531, et seq.) was in effect. Under this Act, conservancy districts were established throughout
the state to assist with flood prevention, regulating the flow of water systems, and the development of water for domestic, agricultural,
and commercial use. 82 O.S. 1961 § 541(b). To
carry out this statutory purpose, districts were
permitted to build, operate, maintain and
repair reservoirs, canals, levees, and dams. 82
O.S. 1961 § 541(b)(7). Districts were further
authorized under the federal Watershed Protection and Flood Prevention Act, to work with
the USDA “in carrying out, maintaining, and
operating the works of improvement authorized by said Act.” 82 O.S. 1961 § 541.1. The
language of the 1961 Conservancy Act mirrors
the language contained in the original deeds.
The intended purpose of FWRS 54 and the
original easements was the permanent eradication of flooding in the Cottonwood Creek
watershed. The parties to the 1962 conveyance
intended the servitudes to be perpetual, or at
least open-ended; empowering the easement
owner to respond to public safety issues presented by aging or damaged levees, dams, and
other flood prevention infrastructure. Because
the 2008 statutory clarification is consistent
with the original purpose of the flood prevention statutes and projects, it was not error for
the trial court to rely on the enactment to determine the proposed rehabilitation of FWRS 54
was within the scope of the original easements.
¶19 Considering the unambiguous terms of
the deeds, together with the easements’ intend1228
ed purpose of protecting citizens and property
in this state, we must find that the subject easements permit necessary rehabilitation to keep
FWRS 54 functioning in a safe manner.9 It
would be illogical to sanction the performance
of routine annual inspections and maintenance, but prohibit repairs which are necessary
to prevent catastrophic failure of the structure.
Dams and other water retarding structures
have finite lifespans. Despite being a structure
with a limited functional duration, the conveying instrument confers a right of enjoyment
“for so long as [grantees] should use said easement for the purpose described above.” Thus,
the parties to the original easements anticipated the need, at some point in the future, to
repair, rebuild, rehabilitate or improve FWRS
54 as necessary. Prior decisions from this Court
support our conclusion.
¶20 For example, in Nazworthy v. Ill. Oil Co.,
1936 OK 150, 54 P.2d 642, a landowner brought
suit for an alleged taking following an oil company’s relocation of an oil pipeline on the landowner’s property. In 1913, Empire Refining
Company laid pipeline along a state highway.
Id. Eight years later Empire transferred its
interest in the pipeline to Illinois Oil Company.
Id. In 1927, the State Highway Commission
decided to widen and improve the highway.
Id. ¶ 3, 54 P.2d at 642. The Commission negotiated and contracted with an adjacent property
owner to acquire a perpetual easement needed
for the highway construction. Id. To complete
the roadwork it became necessary to relocate
the pipeline, and the Highway Commission
directed Illinois Oil to reposition the pipeline
outside of the anticipated roadwork. Id. ¶ 4, 54
P.2d at 642. After completing the pipeline relocation the landowner filed suit for an alleged
taking of private property without compensation. Id. A jury trial was held and a verdict was
returned in favor of the Illinois Oil. Id. ¶¶ 6, 8, 54
P.2d at 643. Landowner appealed and this Court
concluded the placement of the pipeline was
within the highway easement and not an “additional burden or servitude as would entitle the
abutting landowner to additional compensation
for such use.” Id. ¶ 28, 54 P.2d at 646. In reaching
this decision, we recited with approval a passage
from the case of Cater v. Nw. Tel. Exch. Co., 63
N.W. 111, 112 (Minn. 1895):
If there is any one fact established in the
history of society and the law itself, it is
that the mode of exercising this easement is
expansive, developing and growing as civ-
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Vol. 87 — No. 17 — 6/25/2016
ilization advances. In the most primitive
state of society the conception of a highway
was merely a footpath; in a slightly more
advanced state it included the idea of a
way for pack animals; and next a way for
vehicles drawn by animals — constituting,
respectfully, the iter, the actus, and the via
of the Romans. And thus the methods of
using public highways expanded with the
growth of civilization until today our urban
highways are devoted to a variety of uses
not known in former times, and never
dreamed of by the owners of the soil when
the public easement was acquired. Hence it
has become settled law that the easement
is not limited to the particular methods of
use in vogue when the easement was acquired, but includes all new and improved
methods, the utility and general convenience of which may afterwards be discovered and developed in aid of the general
purpose for which highways are designed.
And it is not material that these new and
improved methods of use were not contemplated by the owner of the land when the
easement was acquired, and are more onerous to him than those then in use.
Id. ¶ 17, 54 P.2d at 643-644 (emphasis added).
¶21 A similar case stemming from a landowner’s claim of entitlement to compensation
for alterations and improvements to a public
road easement was decided in Bogart v. CapRock Commc’ns Corp., 2003 OK 38, 69 P.3d
266. In Bogart, an aggrieved landowner had
purchased property which was burdened by
two easements acquired in connection with the
construction a highway. A telecommunications
company obtained permission from the Sequoyah County Commissioners to lay fiber
optic cables within the easement boundary. Id.
¶ 6, 69 P.3d at 269. The landowner brought suit,
alleging inter alia that the installation of fiber
optic cables burdened the property with an
additional servitude and constituted a taking
without just compensation. Id. ¶ 11, 69 P.3d at
270. We retained the case and found Oklahoma
statutes specifically authorized placement of
communication lines within highway or road
easements. Id. ¶ 16, 69 P.3d at 272. However,
that did not end our inquiry. Although authorized to place the telecommunications cables,
we considered whether compensation was
warranted based on the company’s use of
landowner’s property. Id. Relying on our
prior opinion in Nazworthy we determined
Vol. 87 — No. 17 — 6/25/2016
“the installation of fiber optic cables within the
confines of a public right of way or easement
on which public highways or roads are established does not impose any increased servitude
on the land which would entitle the landowner
to additional compensation under the facts
presented.” Id. ¶ 20, 69 P.3d at 273; see also
Town of Ft. Cobb v. Robinson, 1944 OK 74, ¶¶
8-9, 143 P.2d 122, 123 (allowing easement holder to construct a fence to protect water wells as
reasonably incident to the primary easement).
¶22 Unless, specifically prohibited by a conveying instrument, the owner of an easement is
entitled to conduct repairs and improvements
necessary to ensure enjoyment. This is true so
long as repairs or improvements do not exceed
the rights bestowed by the original easement
or unduly burden the servient estate. Restatement (Third) of Prop., Servitudes §§ 4.10 (2000).
“The manner, frequency, and intensity of the
use may change over time to take advantage of
developments in technology and to accommodate normal development of the dominant
estate or enterprise benefited by the servitude.” Id. see also H.D.W., Right of owner of
easement of way to make improvements or repairs
thereon, 112 A.L.R. 1303 (1938) (“It is a general
rule that the owner of an easement of way may
prepare, maintain, improve, or repair the way
in a manner and to an extent reasonably calculated to promote the purposes for which it was
created or acquired, causing neither an undue
burden upon the servient estate, nor an unwarranted interference with the rights of common
owners or the independent rights of others.”).10
¶23 An almost identical dispute was resolved
by the Kansas Supreme Court in the City of
Arkansas City v. Bruton, 166 P.3d 992 (Kan.
2007). In Bruton, the Kansas Supreme Court
evaluated an easement conveyed to a municipality for the purpose of constructing “a dike
along the Arkansas River to protect the City
and its inhabitants from flooding.” Id. at 995.
The easement authorized the City of Arkansas
City to “construct and maintain” a dike on the
subject property.11 Id. Throughout the first 65
years, the City carried out ordinary maintenance and upkeep on the dike, but did not
perform any major upgrades or repairs. Id. at
996. In April of 2000, the City began efforts to
implement significant improvements to the
dike. Id. Property owners objected to reconstructing the dike, arguing the planned modifications exceeded the scope of the original easement and amounted to a taking of private
The Oklahoma Bar Journal
1229
property. Id. On review, the Kansas Supreme
Court disagreed, holding the terms “maintain”
and “maintenance” included the right of the
City to reconstruct the dike. Id. at 1011.12 To reach
this decision, the Court relied on a simple definition of the word “maintain” and the inherent
right of an easement holder to construct, improve
or repair his or her easement under the Restatement. Id. We find the simple straightforward
analysis in Bruton to be compelling.
¶24 Progress and technological advancements are a certainty in this world. It would be
unreasonable to conclude an easement which
authorizes the construction of a flood prevention structure, designed to ensure the safety
and well-being of Oklahoma’s citizens, also
prohibited future repairs or improvements.
According to the 2006 Supplemental Watershed Plan, if FWRS 54 were to suffer a catastrophic failure, it would endanger the lives of
multiple households downstream.13 Unless
specifically proscribed by the conveyance, the
dominant estate owner has an inherent right to
make reasonably necessary improvements and
repairs, so long as they are performed within
the confines of the easement boundary and are
designed to carry out the original intended purpose of the easement grant. See Weeks v. Wolf
Creek Indus., Inc., 941 So.2d 263, 269 (Ala. 2006)
(noting “the law favor[s] changes and improvements for the benefit of the dominant estate so
long as the manifest intent of the parties does
not disallow the changes and the burden to the
servient tenement is not increased.”)
¶25 In POLA’s motion for partial summary
judgment, the association asserted that draining the lake to reconstruct FWRS 54 and permanently lowering the lake’s water level would
amount to a taking of private property for
which compensation must be paid. POLA provided no authority in support of this conclusory argument. Generally, propositions which
are unsupported with authority are deemed
waived. Hough v. Hough, 2004 OK 45, ¶ 16, 92
P.3d 695, 703. Nevertheless, none of the deeds
creating the respective easements mandated a
particular water level. Indeed, the express language of the Fitzwater and Impoundment
Easements authorized water retention to be
either temporary or permanent in nature. The
conveying instrument stated its purpose was
“[f]or the permanent and temporary detention,
either or both.” Naturally, the water level will
fluctuate during periods of drought or high
rainfall. Homeowners do not dispute that the
1230
retained water was never intended to create a
private body of water.
¶26 On this issue we agree with the rationale
adopted by the Nebraska Supreme Court in
Kiwanis Club Found., Inc., of Lincoln v. Yost,
139 N.W.2d 359 (Neb. 1966), and find its guiding principles should be applied to the present
case. Therein, the Yost Court held that an
owner of a dam had no obligation to maintain
the dam’s existence to benefit upper riparian
property owners.14 Id. at 361. Unless an agreement provides otherwise, a dam owner would
be free to “return a river to its natural state by
removing or destroying the dam.” Id. In other
words, “construction and maintenance of
such a dam does not create any reciprocal
rights in upstream riparian proprietors based
on prescription, dedication, or estoppel.” Id.
Accordingly, we find the Respondents have
neither a right to demand water levels be
maintained at a particular depth, nor a right
to compel the continued existence of any
water retarding structure.
Conclusion
¶27 We hold that the unambiguous terms of
the instruments creating the Fitzwater and
Impoundment Easements authorize LCCD to
enter the subject property to perform rehabilitation work on FWRS 54. The need to perform
rehabilitation FWRS 54 is undisputed and necessary to continue serving its intended purpose. The property owner’s purchased their
respective properties subject to burdens associated with the Fitzwater and Impoundment
Easements. Further, the trial court correctly
determined LCCD is not required to maintain
any particular level of retained water. As such,
the trial court correctly awarded summary
judgment in favor of LCCD.
TRIAL COURT’S JOURNAL ENTRY OF
JUDGMENT IS AFFIRMED
¶28 ALL JUSTICES CONCUR
GURICH, J.
1. A work plan was prepared in 1962 by several conservancy districts affected by the Cottonwood Creek watershed, together with help
from the USDA. This work plan is the only document which provides
design specifications pertaining to the initial assembly of FWRS 54.
2. Although not entirely clear in the record, it appears as though
the portion returned to the landowners was either (a) not needed in
furtherance of constructing FWRS 54; or (b) unnecessary for impoundment of water.
3. OWRB is vested with the power to carry out the provisions of
the Oklahoma Dam Safety Act (82 O.S. 2011 § 110.1, et seq.), including
“rules relating to hazard and size classifications, minimum standards
for design, operation and maintenance of dams.” 82 O.S. 2011 § 110.5.
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Vol. 87 — No. 17 — 6/25/2016
4. Chris Stoner is a professional Engineer with the National
Resource Conservation Service, a division of the USDA.
5. The unpublished Court of Civil Appeals opinion in Case No.
106875 is distinguishable and unpersuasive. More importantly, the
record in the present case lacks any evidentiary material which would
support Respondents’ position that the proposed rehabilitation of
FWRS 54 exceeds the scope of the original easements.
6. Letters/affidavits from several homeowners were attached to
POLA/Homeowners’ motion. However, none of this evidentiary material challenged the scope of the Fitzwater or Impoundment Easements,
or the authority of LCCD to exercise its rights under the easements.
7 Title 27A O.S.Supp. 2008 § 3-3-411(B) of the Conservation District
Act became effective in 2008, and provides:
Pursuant to the Conservation District Act, the phrase “operation
and maintenance” or “operate and maintain” as used in a variety
of contractual documents, easements, statutes, rules, and other
legal authority by the conservation districts and their assigns
shall be interpreted to:
A. Encompass the terms repair, modification, alteration, rehabilitation, upkeep, upgrade, improvement, construction, reconstruction, decommission, and inspection; and
B. Benefit the state and conservation districts.
8. Journal Entry of Judgment dated September 19, 2014, Rec. Vol.
IV, Doc. 15.
9. See Rest. (Third) of Prop., Servitudes § 4.1(1) (2000) (“A servitude should be interpreted to give effect to the intention of the parties
ascertained from the language used in the instrument, or the circumstances surrounding creation of the servitude, and to carry out the
purpose for which it was created.”)
10. Decisions around the United States consistently recognize the
inherent right of an easement holder to maintain, repair, or improve
the property interest in furtherance of its intended purposes. See e.g.,
Woods v. Shannon, 344 P.3d 413, 417 (Mont. 2015); Koch v. J & J Ranch,
L.L.C., 299 P.3d 689, 694, 696 (Wy. 2013); Parris Properties, L.L.C. v.
Nichols, 700 S.E.2d 848, 853-854 (Ga. Ct. App. 2010); Koenigs v. Mitchell Cty. Bd. of Supervisors, 659 N.W.2d 589, 594 (Iowa 2003); State Soil
& Water Conservation Comm’n v. Stricklett, 555 S.E.2d 800, 804 (Ga.
Ct. App. 2001); Shallow Run Ltd. P’ship v. State Highway Admin., 686
A.2d 1113, 1121 (Md. 1996); C/R TV, Inc. v. Shannondale, Inc., 27 F.3d
104, 108 (4th Cir. 1994); Swango Homes, Inc. v. Columbia Gas Transmission Corp., 806 F.Supp. 180, 185 (S.D. Ohio 1992); Hayes v. City of
Loveland, 651 P.2d 466, 468 (Colo. App. 1984).
11. Unlike the Fitzwater and Impoundment Easements, the easement in Bruton included technical plans and specifications for building the floodwater retarding structure.
12. See also, Hous. Pipe Line Co. v. Dwyer, 374 S.W.2d 662, 664
(Tex. 1967) (holding “the terms ‘operate’ and ‘maintain’ in the granting
clause [of an easement] are at least broad enough to include the right
to remove and replace the original pipe with pipe of the same size
when necessary.”); United States v. Green Acres Enters, Inc., 86 F.3d
130, 134 (8th Cir. 1996) (finding “the unambiguous language [of an
easement] makes clear that the right to maintain the levees includes
the right to repair breaches in the levees caused by floods.”); Talty v.
Commonwealth Edison Co., 347 N.E.2d 74, 76 (Ill. App. Ct. 1976) (recognizing that although easements did not contain words reconstruct or
renew, terms construct, operate, use and maintain authorized replacing electrical lines to modernize system).
13. Interestingly, the 2006 plan contains the following excerpt:
“Seismic: The Cottonwood Creek Watershed is located in an area of
very low potential seismic activity. Therefore, seismic activity presents
a low potential mode of failure for [FWRS 54].” Appendix to Petitioner’s Motion for Summary Judgment, Rec. Vol. I, Doc. 2, Exhibit G.
14. The Yost Court believed that property owners who build or
improve land adjacent to an artificial lake are clearly on notice of the
risks inherent with such development:
Construction and maintenance of a dam over a long period of
years may well tend to lead persons owning property above the
dam to believe that a permanent and valuable right has been
acquired, or is naturally present. The very fact that a manmade
dam is obviously present, however, is sufficient to charge them
with notice that the water level above the dam is artificial as
distinguished from natural, and that its level may be lowered or
returned to the natural state at any time.
Id. at 361.
2016 OK 66
IN THE MATTER OF THE
REINSTATEMENT OF JEFFERY DANE
WAGNON, TO MEMBERSHIP IN THE
Vol. 87 — No. 17 — 6/25/2016
OKLAHOMA BAR ASSOCIATION AND
TO THE ROLL OF ATTORNEYS
SCBD # 6067. June 7, 2016
PROCEEDING FOR REINSTATEMENT TO
THE OKLAHOMA BAR ASSOCIATION
¶0 Petitioner, Jeffery Dane Wagnon, sought
reinstatement to membership in the Oklahoma
Bar Association following his disbarment on
October 12, 2004. After a hearing, the Professional Responsibility Tribunal unanimously
recommended reinstatement. Upon de novo
review, we approve Petitioner’s reinstatement
subject to his payment of costs in the amount of
$168.96 within thirty (30) days from the date
this opinion becomes final.
PETITION FOR REINSTATEMENT
GRANTED; COSTS IMPOSED
Scott L. Tully, Broken Arrow, Oklahoma, for
Petitioner.
Stephen L. Sullins, Assistant General Counsel,
Oklahoma Bar Association, Oklahoma City,
Oklahoma, for Respondent.
GURICH, J.
¶1 Pursuant to Rule 11 of the Rules Governing
Disciplinary Proceedings (RGDP) the Petitioner,
Jeffery Dane Wagnon, filed a Petition for Reinstatement on November 15, 2013, requesting
reinstatement as a member of the Oklahoma Bar
Association. Petitioner Wagnon was suspended
from the OBA on October 12, 2004. Upon review,
we find the Petition for Reinstatement is supported by clear and convincing evidence and
grant reinstatement. The OBA’s Application to
Assess Costs in the amount of $168.96 is granted.
Petitioner Wagnon is directed to pay such costs
within thirty (30) days from the date this opinion
becomes final.
Facts & Procedural History
¶2 Petitioner Wagnon was admitted to practice law in the state of Oklahoma in 1990. Petitioner Wagnon practiced law in Oklahoma
from 1990 until his suspension in 2004. Petitioner was also admitted to practice law in the
state of Texas, where the vast majority of his
practice took place.1 In 2003, Petitioner resigned
from the Texas Bar pending disciplinary proceedings. The disciplinary proceedings in
Texas involved five separate clients and centered around client neglect, failure to inform
clients concerning the status of matters, failure
to maintain adequate communication with cli-
The Oklahoma Bar Journal
1231
ents, engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation, failure
to take reasonable steps to mitigate the consequences to the client upon withdrawal from
representation, and failure to timely furnish
the Texas Disciplinary Counsel’s office with a
response.2
¶3 Pursuant to Petitioner’s pending disciplinary proceedings in Texas, the OBA instituted reciprocal disciplinary proceedings
against Petitioner in Oklahoma. The OBA also
alleged that Petitioner had neglected two client
matters in Oklahoma in violation of the Oklahoma Rules of Professional Conduct. Upon
review, this Court found:
Respondent’s actions in Oklahoma and
Texas demonstrate serious misconduct in
several regards over an extended period of
time. Enhancing the sanction to be imposed
is Respondent’s failure to timely or adequately respond to the disciplinary process
in Texas and in Oklahoma.
Respondent failed to timely respond to
any of the five Texas complaints. When
Respondent chose to resign from the Texas
Bar, the Supreme Court of Texas ordered
him to file two affidavits concerning notice
of resignation to clients and the bench. Neither affidavit was filed and Respondent
has ignored reminders of that obligation.
Respondent’s indifference to the Texas
disciplinary process is mirrored in his response to the disciplinary process in Oklahoma. He has failed to act in a timely
manner, or has failed to respond, at each
stage of the disciplinary process. In addition, Respondent promised the General
Counsel’s Office on at least nine occasions
that he would resign rather than proceed
to trial. Less than a week before trial, however, he reversed his position at the urging
of his mother.
At the disciplinary hearing, Respondent
was provided the opportunity to present
evidence tending to mitigate the severity of
discipline. He presented only his testimony
that in 2001 he suffered a ‘severe bout of
depression’ brought on by economic losses
and his wife leaving him. His testimony
revealed that, although he had been treated
for depression, he had failed to ‘stick with
the course of therapy and medication.’ No
supporting evidence concerning Respon1232
dent’s depression or his financial and family problems was presented.
Respondent’s misconduct spanned several years and seven clients in two states.
The disciplinary sanction to be imposed is
enhanced by his response to the disciplinary process. This Court imposes the severest sanction, that of disbarment.3
¶4 At the time the disbarment order was
issued in Oklahoma, Petitioner was living in
Arkansas. Petitioner worked at several car
dealerships while living in Arkansas and subsequently moved to Texas where he continued
to work in the used-car industry. In 2008, after
moving to Texas, Petitioner Wagnon began seeing Dr. Jon Bergeron, a clinical psychologist.
Dr. Bergeron diagnosed Petitioner Wagnon
with Major Depressive Disorder and Petitioner
began therapy and medication under Dr.
Bergeron’s supervision.4 In September of 2011,
Dr. Bergeron stated that “[d]uring the course of
treatment, Mr. Wagnon has exhibited a stable
mood and a commitment to staying mentally
healthy. During our therapeutic work, Mr.
Wagnon has experienced a number of significant stressors including long hours and difficult
interpersonal situations at work and has shown
the ability to recognize and handle the stress
appropriately and to maintain his well-being in
the process.”5 Dr. Bergeron continued: “Mr.
Wagnon expresses a strong desire to assure that
his mood does not interfere with his functioning
in the future and has followed through with . . .
dedication and work in therapy to manage his
depression and prevent relapse.”6
¶5 Petitioner married in May of 2007. His
spouse testified before the PRT that at the time
she met him, Petitioner was still struggling
with his mental health issues but that upon
beginning a consistent medication routine and
therapy with Dr. Bergeron, Petitioner became
“very consistent with medical treatment.”7
Petitioner’s spouse testified that although she
had witnessed some “tough days” for Petitioner over the course of their marriage, Petitioner had consistently continued taking his
medication.8
¶6 With the support of his spouse and Dr.
Bergeron, Petitioner Wagnon filed for reinstatement to the Texas Bar in June of 2011. On October 3, 2011, Petitioner was reinstated to the
Texas Bar conditional on his passing the Texas
bar exam. In the order reinstating Petitioner
Wagnon, the court found Petitioner was of
The Oklahoma Bar Journal
Vol. 87 — No. 17 — 6/25/2016
“good moral character” and “possesse[d] the
mental and emotional fitness to practice law.”9
Petitioner took the Texas bar exam and passed
and was readmitted to the Texas Bar in May of
2012.10 Since that time, Petitioner Wagnon has
participated in the equivalent of Oklahoma’s
Lawyer’s Helping Lawyer’s programs sponsored by the Texas Bar Association.
¶7 On November 15, 2013, Petitioner Wagnon
filed his Petition for Reinstatement requesting
reinstatement to the OBA. The case was continued several times by agreement of the parties,
but on February 19, 2015, the OBA filed a
“Motion to Dismiss for Lack of Prosecution”
after not having received a completed reinstatement questionnaire from Petitioner. Petitioner Wagnon responded, explaining that in
April of 2014, he had to assist a fellow Texas
attorney wind down his practice unexpectedly
and without notice, and as a result, had many
cases to dispose of. Petitioner explained that he
inherited a number of clients which required
him to relocate offices and cities. He asked that
the OBA send a new questionnaire packet so that
his information would be up to date and stated
that if he could not complete the packet by May
15, 2015, he would voluntarily withdraw his
petition. On May 19, 2015, the OBA informed
this Court that it had received Petitioner’s questionnaire packet, and an order was issued setting a hearing date before the PRT.
¶8 The PRT held a hearing on August 6, 2015.
On November 18, 2015, the PRT issued its
report, recommending Petitioner Wagnon be
reinstated. Petitioner filed his brief in support
of reinstatement with this Court on December
11, 2015. The OBA filed a Waiver of Answer
Brief on December 23, 2015, waiving its right to
file a brief and endorsing the findings submitted by the PRT. The cause was assigned to this
office on January 4, 2016.
Standard of Review
¶9 Under the RGDP, the PRT is obligated to
hold a hearing on an application for reinstatement and must provide this Court with a
detailed summary of their factual and legal
determinations.11 A report from the PRT is
required to include specific determinations
including whether: 1) the petitioner possesses
the good moral character which would entitle
him to be admitted to the Bar Association; 2)
the petitioner has not engaged in the unauthorized practice of law during the period of suspension; and 3) the petitioner possesses the
Vol. 87 — No. 17 — 6/25/2016
competency and learning required for admission to the practice of law. In re Reinstatement
of Pacenza, 2009 OK 9, ¶ 9, 204 P.3d 58, 62.
Failure to establish any of these essential prerequisites necessitates denial of reinstatement.
In re Reinstatement of Blake, 2016 OK 33, ¶ 8,
___P.3d___.
¶10 Any recommendations of the PRT are
merely advisory and the panel’s conclusions
are not binding. In re Reinstatement of Kerr,
2015 OK 9, ¶ 6, 345 P.3d 1118, 1121. This Court
conducts a review of PRT findings by
“exercise[ing] independently its original jurisdiction and appl[ying] a de novo standard of
review.” In re Reinstatement of Hird, 2008 OK
25, ¶ 3, 184 P.3d 535, 537. Our primary objectives
when weighing an attorney’s request for reinstatement are protecting the public and maintaining confidence in the OBA. In re Reinstatement of Page, 2004 OK 49, ¶ 3, 94 P.3d 80, 82.
¶11 In addition, RGDP Rule 11.4 provides
that “[a]n applicant for reinstatement must
establish affirmatively that, if readmitted or if
the suspension from practice is removed, the
applicant’s conduct will conform to the high
standards required of a member of the Bar.” An
attorney seeking reinstatement “bears the
heavy burden of showing, by clear and convincing evidence, that reinstatement is warranted.” In re Reinstatement of Page, 2004 OK
49, ¶ 2, 94 P.3d at 81. Applicants must present
stronger proof of meeting admission standards
than an individual seeking to join the OBA for
the first time. In re Reinstatement of Otis, 2007
OK 82, ¶ 7, 175 P.3d 357, 361. When evaluating
a bid for readmission to the OBA, this Court
weighs certain factors, including but not limited to: 1) the applicant’s present moral fitness;
2) demonstrated consciousness of the conduct’s wrongfulness and the disrepute it has
brought upon the legal profession; 3) the extent
of rehabilitation; 4) the original misconduct’s
seriousness; 5) conduct after resignation; 6)
time elapsed since the resignation; 7) the applicant’s character, maturity, and experience when
suspended; and 8) present legal competence. In
re Reinstatement of Pacenza, 2009 OK 9, ¶ 9,
204 P.3d at 62. Every reinstatement proceeding
must be evaluated and decided on a case-bycase basis, with each result dependent on the
particular facts and circumstances. Id.
Analysis
¶12 Rule 9.1 of the RGDP provides:
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When the action of the Supreme Court
becomes final, a lawyer who is disbarred or
suspended, or who has resigned membership pending disciplinary proceedings,
must notify all of the lawyer’s clients having legal business then pending within
twenty (20) days, by certified mail, of the
lawyer’s inability to represent them and
the necessity for promptly retaining new
counsel. If such lawyer is a member of, or
associated with, a law firm or professional
corporation, such notice shall be given to all
clients of the firm or professional corporation, which have legal business then pending with respect to which the disbarred,
suspended or resigned lawyer had substantial responsibility. The lawyer shall also file a
formal withdrawal as counsel in all cases
pending in any tribunal. The lawyer must
file, within twenty (20) days, an affidavit with
the Commission and with the Clerk of the
Supreme Court stating that the lawyer has
complied with the provisions of this Rule,
together with a list of the clients so notified and
a list of all other State and Federal courts and
administrative agencies before which the lawyer
is admitted to practice. Proof of substantial
compliance by the lawyer with this Rule 9.1
shall be a condition precedent to any petition
for reinstatement.12
¶13 In In re Reinstatement of Elias, 1988 OK
86, 759 P.2d 1021, the disciplined attorney
never filed the affidavit required under Rule
9.1. However, at the time the attorney’s discipline was finalized, he had already informed
his clients of the necessity of obtaining new
counsel and had cleared his files of client matters. The Court stated that the “clear import of
Rule 9.1 [was] to protect the interests of the
clients of an attorney who is being subjected to
the denial of his ability to practice law as a
result of disciplinary measures.” Id. ¶ 14, 759
P.2d at 1025. Although the attorney had not
literally complied with Rule 9.1, the Court held
that proof of substantial compliance was sufficient as prerequisite to reinstatement. The
Court reinstated the attorney and found that
the intent of the rule was served. Id.
¶14 In the case before us, Petitioner Wagnon
admitted he did not file the Rule 9.1 affidavit
until July 25, 2011. However, the affidavit demonstrates that Petitioner Wagnon had stopped
practicing law in Oklahoma approximately six
months prior to being disbarred and that all
client matters had either been resolved or rep1234
resentations terminated or transferred.13 Petitioner Wagnon’s affidavit states he had no clients well prior to the date within which he was
to have complied with Rule 9.1.14 Although
Petitioner Wagnon did not file the affidavit
within twenty days of the disciplinary matter
becoming final, the intent of Rule 9.1 was
served when Petitioner Wagnon resolved all
client matters and representations six months
prior to the issuance of the final order of discipline. We find that he substantially complied
with Rule 9.1.
¶15 We additionally find that Petitioner
Wagnon has met all of the procedural requirements necessary for reinstatement as set out in
Rule 11 of the RGDP. Affidavits are present in
the record showing all of his activities since his
disbarment as well as his places of residence
since that time. Affidavits are present in the
record showing that Petitioner Wagnon has not
engaged in the unauthorized practice of law in
the state of Oklahoma during his suspension.
Evidence is also present in the record that no
funds were expended from the Client Security
Fund reimbursing clients on behalf of Petitioner Wagnon.
¶16 We also find that Petitioner Wagnon has
presented clear and convincing evidence that
he possesses the good moral character and the
competency and learning required for admission to the practice of law. Specifically with
regard to the latter, Petitioner Wagnon introduced evidence that before he was readmitted
to the Texas Bar, he was required to take and
pass the Texas bar exam. He passed the exam
in May of 2012, and since that time, has taken
close to 100 hours of continuing legal education courses.
¶17 In addition, we find several factors
weighing in favor of Petitioner Wagnon’s reinstatement. Petitioner has demonstrated consciousness of the conduct’s wrongfulness and
the disrepute it has brought upon the legal
profession, and we believe he fully recognizes
the seriousness of the original misconduct. He
testified before the PRT that his past conduct
affects him deeply and on a daily basis. He
testified that even though he now recognizes
that he was suffering from a medical condition
that impacted his ability to function, he was the
one that was not taking the medication and
that he was solely responsible for his behavior.
He testified that he is reminded daily of the
disservice he did to his family, to the community, to the legal profession, and to the particu-
The Oklahoma Bar Journal
Vol. 87 — No. 17 — 6/25/2016
lar clients involved. In addition, as mentioned
above, Petitioner Wagnon began regularly seeing a therapist, Dr. Bergeron, after he moved to
Texas in 2008. Dr. Bergeron stated in 2011 that
he was “aware that Jeff Wagnon resigned in
his license to practice law because of some
outstanding complaints against him. We have
discussed at length the matters that led to his resignation, and he recognizes the negative impact his
unprofessional conduct had on his clients and the
legal profession as a whole.”15
¶18 Additionally, the extent of Petitioner
Wagnon’s rehabilitation is evident from the
record. Although Petitioner Wagnon’s mental
health was put at issue in his original disciplinary proceeding, this Court found Petitioner
had not presented supporting evidence concerning his depression. Petitioner Wagnon
acknowledged such at the hearing before the
PRT in this case. He testified that at the time he
was not in a good frame of mind and was not
consistently taking his medication. He testified
he did not handle himself very well twelve
years ago and that logic and clear thinking
were not his friends at that point in his life. He
testified he recognizes now that he has mental
health issues, but feels like he has addressed
those issues by consistently taking his medication. He understands now that not taking his
medication is no longer an option. He stated to
the PRT: “I feel like I have demonstrated, over
a good course of years, that I have worked my
way back and worked though those issues and
that I am a good candidate to have my law
license back.”16 Additionally, no orders were
entered by this Court or by the Texas bar for
Petitioner Wagnon to pay restitution to any
clients. However, as further evidence of Petitioner’s rehabilitation, he testified that as he
was preparing for the Texas reinstatement proceedings, he felt like he needed to make reparations with a few clients. He tracked down three
former clients who had filed grievances against
him and who had complained about money in
some way, and returned the money to each client in full.
¶19 Twelve years have passed since Petitioner Wagnon was disciplined in Oklahoma.
Since that time, Petitioner Wagnon has had no
criminal charges or convictions of any kind,
and there is no evidence whatsoever of any
allegations of the unauthorized practice of
law. He was reinstated to the Texas Bar in
2012, and the record before us does not reveal
Vol. 87 — No. 17 — 6/25/2016
any disciplinary issues with the Texas Bar
since his reinstatement.
Conclusion
¶20 Upon consideration, we conclude that
Petitioner Wagnon has met the heavy burden
of proving that reinstatement is warranted in
this case. Petitioner Wagnon has presented
stronger proof of meeting the admission standards than an individual seeking to join the bar
for the first time. Petitioner Wagnon’s Petition
for Reinstatement is granted. The OBA’s Application to Assess Costs in the amount of $168.96
is granted. Petitioner Wagnon is directed to
pay such costs within thirty (30) days from the
date this opinion becomes final.
PETITION FOR REINSTATEMENT
GRANTED; COSTS IMPOSED
¶21 ALL JUSTICES CONCUR
GURICH, J.
1. Petitioner was also admitted to practice in New Mexico during
this time.
2. See State ex rel. Okla. Bar Ass’n v. Wagnon, 2004 OK 78, ¶ 5, 104
P.3d 571, 572-73.
3. Wagnon, 2004 OK 78, ¶¶ 13-17, 104 P.3d at 575.
4. Petitioner Wagnon testified before the PRT that he had previously been diagnosed with depression in 1994, but that he would stop
taking his medication periodically. He did not begin taking his medication consistently again until 2006. Reinstatement Hearing Transcript at
79-81.
5. Hearing Exs., Ex. 7 at 2.
6. Id.
7. Reinstatement Hearing Transcript at 20.
8. Id. at 26.
9. Hearing Exs., Ex. 5.
10. Reinstatement Hearing Transcript at 41.
11. 5 O.S. 2011, ch. 1, app. 1-A, R. 11.3-11.5.
12. 5 O.S. 2011, ch. 1, app. 1-A, R. 9.1 (emphasis added).
13. Hearing Exs., Ex. 26.
14. Id.
15. Hearing Exs., Ex. 7 at 2 (emphasis added).
16. Reinstatement Hearing Transcript at 54.
2016 OK 67
AMERICAN NATURAL RESOURCES, LLC,
an Oklahoma limited liability company,
Respondent/Appellant, v. EAGLE ROCK
ENERGY PARTNERS, L.P., a Delaware
limited partnership, and EAGLE ROCK
MID-CONTINENT OPERATING, LLC, a
Delaware limited liability company, EAGLE
ROCK MID-CONTINENT HOLDING, a
Delaware limited liability company, EAGLE
ROCK MID-CONTINENT ASSET, LLC, a
Delaware limited liability company, EAGLE
ROCK ENERGY GP, L.P., a Delaware limited
liability company, EAGLE ROCK ENERGY
The Oklahoma Bar Journal
1235
G&P, LLC, a Delaware limited liability
company, Petitioners/Appellees.
No. 113,105. June 14, 2016
ON CERTIORARI FROM THE COURT OF
CIVIL APPEALS, DIVISION IV
¶0 Parties to an agreement regarding an
area of mutual interest for the purposes of
oil and gas exploration sought to determine their respective rights under the
agreement. The agreement gave the respondents here the right to participate in wells
in futuro. The petitioners here urged that
the provision violated the rule against perpetuities. The district court agreed and
granted judgment to the petitioners. The
Court of Civil Appeals affirmed in part and
reversed in part the district court and
remanded the matter for further proceedings. This Court granted certiorari.
COURT OF CIVIL APPEALS’ OPINION
VACATED; DISTRICT COURT’S ORDER
AFFIRMED.
Bradley K. Beasley, Boesche McDermott, LLP,
Tulsa, Oklahoma; David A. Sturdivant, Cori D.
Powell, Barrow & Grimm, P.C., Tulsa, Oklahoma; John W. Garland, Pain & Garland, Anadarko, Oklahoma; for Appellants.
Graydon Dean Luthey, Jr., Terry D. Ragsdale,
Bradley W. Welsh, Tammy D. Barrett, Gable &
Gotwals, Tulsa, Oklahoma, for the Appellees.
TAYLOR, J.,
¶1 The questions before this Court are whether a clause in an agreement giving a limited
liability company the right to participate in all
future wells on unleased property violates Article II, Section 32 of the Oklahoma Constitution
prohibiting perpetuities and whether a limited
liability company is a life in being for purposes
of Article II, Section 32 of the Oklahoma Constitution. We answer the first question in the affirmative and the second question in the negative.
We find that the district court did not commit
error in granting a motion to dismiss based on
these two questions.
I. BACKGROUND AND ALLEGATIONS
¶2 On August 23, 2005, Defendants’ predecessor in interest, Encore Operating, L.P. and
American Natural Resources (ANR), entered
into a letter agreement with an effective date of
September 1, 2005, regarding the development
of an “area of mutual interest” (AMI). ANR
1236
agreed to assign Encore leases in the AMI, and,
in exchange, Encore agreed to (1) drill a test
well, (2) pay $350.00 per acre with “ANR delivering no less than seventy-eight percent (78%)
net revenue interest,” (3) allow ANR the option
of participating in the test well, (4) give ANR a
twelve and one half percent back-in after payout on the initial test well, (5) “pay $100,000
regarding the pooling covering the drillsite of
the test well,” and (6) allow ANR to participate
in all future wells drilled in the AMI at any
time whether or not the parties held a current
lease. Defendants became Encore’s successor in
interest to the agreement by acquiring Encore’s
interest in the AMI.
¶3 The provision allowing ANR to participate in future wells (Option Provision) is at the
heart of this controversy. It provides:
2. In all subsequent wells within the AMI,
ANR shall have the right to participate in
the prospect area with a twenty-five percent (25%) working interest . . . .
ANR contends that Defendants have drilled
and completed seventeen wells in the AMI
without allowing ANR to participate in breach
of this provision.
II. PROCEDURAL HISTORY
¶4 ANR claimed damages for breach of contract and for intentional interference with prospective economic benefits, sought a declaration
that it is entitled to participate in future wells
drilled in the AMI, and sought an accounting of
all expenses and revenues relating to the AMI
since the date of the agreement. Defendants
filed a motion to dismiss for failure to state a
claim, urging that the rule against perpetuities
prevented ANR from enforcing the Option
Provision. ANR responded that the rule against
perpetuities (1) does not apply to oil and gas
operating agreements and (2) does not apply to
the Option Provision because oil and gas production is always of limited duration. After
holding a hearing, the district judge granted
Defendants’ motion to dismiss.
¶5 The Court of Civil Appeals affirmed in
part and reversed in part. The Court of Civil
Appeals remanded the case so that ANR could
amend its pleadings and for a determination of
“whether, if alleged, a personal contract and a
specific or perpetual organization life, together
or separately, suffice to create an exception to
the application of the Rule Against Perpetuities
as set out in Producers Oil Co. v. Gore, 1980 OK
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Vol. 87 — No. 17 — 6/25/2016
62, 610 P.2d 772.” Defendants filed a petition
for certiorari which this Court granted.
III. STANDARD OF REVIEW
¶6 This Court subjects a trial court’s judgment dismissing a petition to de novo review.
Darrow v. Integris Health, Inc., 2008 OK 1, ¶ 7,
176 P.3d 1204, 1208. When evaluating a motion
to dismiss, the court examines only the controlling law, not the facts. Id. Thus, the court must
take as true all of the challenged pleading’s
allegations together with all reasonable inferences that can be drawn from them. Id. Motions
to dismiss are generally disfavored and granted only when there are no facts consistent with
the allegations under any cognizable legal theory or there are insufficient facts under a cognizable legal theory. Id. We review the motion to
dismiss under this standard.
IV. ANALYSIS
¶7 The rule against perpetuities is embedded
in the Oklahoma Constitution at Article II, Section 32, which provides:
Perpetuities and monopolies are contrary
to the genius of a free government, and
shall never be allowed, nor shall the law of
primogeniture or entailments ever be in
force in this State.
In Melcher v. Camp, 1967 OK 239, 435 P.2d 107,
this Court recognized that Article II, Section 32
was an adoption of the common-law rule against
perpetuities. The Melcher Court adopted the
“most universally accepted short definition of
the common-law rule against perpetuities:”
No interest is good unless it must vest, if at
all, not later than twenty-one years after
some life in being at the creation of the
interest.
Id. ¶ 18, 435 P.2d at 111 (quoting John Chipman Gray, The Rule Against Perpetuities 191 (4th
ed. 1942)).
A. The Rule Against Perpetuities and Joint
Operating Agreements with Options
¶8 The common-law rule against perpetuities applies to property rights, but does not
apply to contracts which are entirely personal.
Melcher, 1967 OK 239, ¶ 27, 435 P.2d at 112.
ANR urges, in this respect, that this commonlaw rule does not apply to a joint operating
agreement (JOA), citing Producers Oil Co. v.
Gore, 1980 OK 62, ¶ 10, 610 P.2d 772, 774. Producers Oil Co. recognized that a JOA, while
Vol. 87 — No. 17 — 6/25/2016
contractual in nature, may include provisions
that convey a property interest as well, such as
preemptive rights which must be scrutinized
under the common-law rule against perpetuities. Id. ¶ 9, 610 P.2d at 774. Thus, a JOA, which
covers a well’s operations, generally does not
include an AMI agreement, but an AMI agreement may be included in a JOA. Here, a JOA is
not before this Court, but we are presented
with a stand-alone AMI agreement.
¶9 We examine whether the relevant provision in this case creates a property right subject
to Article II, Section 32’s constitutional perpetuity prohibition. ANR alleged in its petition
that it had a “right to participate for a 25%
working interest in each of the Disputed Wells
as well as in all future wells within the AMI
drilled in the future by [Defendants],” which
would include wells drilled on leases procured
in the future within the AMI.
¶10 Defendants rely primarily on Melcher v.
Camp, 1967 OK 239, 435 P.2d 107, in support of
their position that the Option Provision creates
a property right subject to the rule against perpetuities. In Melcher, the parties entered into an
oil and gas top lease covering the upper 5,500
feet of certain property. A separate agreement
provided:
“The parties further mutually agree that in
the event [the lessors] shall at any time
have an opportunity to lease the oil, gas
and other minerals and mineral rights
below 5500 feet, [the lessee] is to be given a
five day option of acquiring such lease
himself on the same terms and conditions
offered to [the lessors].”
Id. ¶ 2, 435 P.2d at 109. This Court found that
the provision giving the lessors a preemptive
option was void as violating of the rule against
perpetuities. Id. ¶ 44, 435 P.2d at 115. The factors the Court considered were (1) the option
was contained in a separate agreement, id. ¶ 2,
435 P.2d at 109, and, therefore, did not terminate with an existing lease agreement, (2) there
was no connection between the lease option
and an existing lease other than the covered
areas were vertically contiguous and they
required the use of some surface area, id. ¶ 6,
435 P.2d at 109, (3) the lease option was not a
renewal of an existing lease, id., (4) the lease
option was based on a condition precedent
which might never occur, id. ¶ 7, 435 P.2d at
109, (5) the lessors gave up their right to sell to
whomever they wanted, id. ¶ 9, 435 P.2d at 110,
The Oklahoma Bar Journal
1237
and (6) conveyance of a lease to the mineral
rights below 5,500 feet to a third party would
be a breach of the separate agreement. Id. Thus,
the option created an interest in property. Id. ¶
36, 435 P.2d at 114.
¶11 ANR relies on Producers Oil Co. v. Gore,
1980 OK 62, 610 P.2d 772, in support of its position that the Option Provision is not subject to
and, thus, does not violate the rule against
perpetuities. In Producers Oil Co., the JOA contained the following provision:
15. “Should any Non-Operator desire to
sell the interest, or any part thereof, owned
by such Non-Operator in the oil and gas
lease, or leases, hereinabove described,
such Non-Operator shall promptly give
written notice to Operator with full information concerning such proposed sale,
including the name and address of the prospective purchaser (who must be ready,
willing and able to purchase), the purchase
price and all other terms of the offer. Operator shall then have an optional prior right
for a period of ten days after receipt of the
notice to purchase on the same terms and
conditions, the interest which such NonOperator proposes to sell. . . .”
Id. ¶ 1, 610 P.2d at 773. This Court found that
this provision was a preemptive option and
upheld the provision against a rule-againstperpetuities attack, finding that the exception
stated in Melcher, 1967 OK 239, ¶ 44, 435 P.2d at
115, in treatises, and in Section 395 of the
Restatement of Property applied. The exception provides: “[W]hen the option to purchase
the fee is contained in the lease and is exercisable within the term of the leasehold interest
impressed upon the property, it is not subject
to the rule against perpetuities.” Melcher, 1967
OK 239 at ¶ 44, 435 P.2d at 115; Producers Oil
Co., 1980 OK 62, ¶17, 610 P.2d at 775.
¶12 Producers Oil Co. distinguished the option
in Melcher.
In Melcher the preemptive rights were not a
part of an operating agreement dependent
upon a lease. The rights in Melcher would
vest only if a new lease was offered. The
preemption did not apply to previously
leased property but to unleased vertically
contiguous property. In Melcher only one
party held preemptive rights while here
the preemptive rights are reciprocal. These
rights were not delineated by any time
frame; a new lease could have been
1238
acquired whether or not there was any production in the upper formation.
Producers Oil Co., 1980 OK 62, ¶14, 610 P.2d at
775.
¶13 Here, the Option Provision is more akin
to the Melcher option than to the one in Producers Oil Co. The Option Provision is not part of a
JOA or a lease. It does not expire when an existing lease expires, but continues when new
leases are executed with new wells drilled
thereon. Nonetheless, ANR postulates that the
option to participate is self-terminating by the
cessation of production, citing Producers Oil
Co., 1980 OK 62 at ¶ 11, 610 P.2d at 774. While
ANR’s position finds support in dicta, Producers Oil Co. clarified that the reason options
contained in mineral leases and in JOAs do not
violate the rule against perpetuities is because
mineral leases and JOAs have built in duration
not necessarily tied to the cessation of production. Id. Here the AMI agreement is a standalone document and the Option Provision
applies to participation in wells drilled on
future as well as existing leases. The Option
Provision’s term would allow ANR to participate in future wells if production ceased and
then restarted under new leases and new JOAs.
Simply, the Option Provision provides for ANR
to participate in wells infinitum and is subject
to the rule against perpetuities.
B. Life in Being
¶14 ANR urged and the Court of Civil
Appeals accepted as true, both without supporting authority, that an LLC, such as ANR,
could be a life in being for the purposes of the
rule against perpetuity. We cannot agree.
¶15 ANR claims that a “life in being” includes
entities such as a corporation and an LLC,
based on this Court’s determination in Cartwright v. Hillcrest Investments, Ltd., 1981 OK 27,
¶ 10, 630 P.2d 1253, 1256, that “at the time the
Constitution was adopted, the term ‘person’
was generally understood to include corporations.” ANR’s reasoning is faulty due to an
association fallacy: because a corporation may
be a “person” does not make it a “life in being.”
¶16 At common law, a corporation did not
qualify as a life in being. Restatement (First) of
Property § 374, cmt. h (1944). The comment
expounds on the meaning of life in being:
The lives which can be used in measuring
the permissible period under the rule
The Oklahoma Bar Journal
Vol. 87 — No. 17 — 6/25/2016
against perpetuities must be lives of human
beings. For many purposes in the law a
corporation is a “person,” but not for the
measurement of the period described in
Clause (a). So also no such measurement
may be expressed in terms of the life of any
animal (other than man), even though the
animal is one of a type having a life span
typically shorter than that of human beings,
as for example, a dog or a horse.
The United States Supreme Court also found
that the use of a corporation as a life in being
under the common law would violate the rule
against perpetuities. Fitchie v. Brown, 211 U.S.
321, 334 (1908).
¶17 When there is no measurable life in
being, such as with a corporation or an LLC,
the “only definite period permitted by the rule
against perpetuities is a term not exceeding 21
years.” Melcher, 1967 OK 239, ¶ 20, 435 P.2d at
111. A provision without a measurable life in
being that vests or distributes after twenty-one
years violates the rule against perpetuities and
is void. McLaughlin v. Yingling, 1923 OK 99, ¶
42, 213 P. 552, 564. ANR urges that this twentyone year rule shows that a corporation is a life
in being under the rule. If a corporation or an
LLC is a life in being, then the twenty-one-year
rule for entities would be superfluous.
¶18 ANR states that they wish to amend
their petition to show that they are a “single
member limited liability company with a 30
year duration.” ANR urges that as a singlemember LLC, the LLC should be disregarded
as an entity for purposes of the rule against
perpetuities, just as it can be for federal tax
purposes. Here, we are not dealing with federal taxes; we are dealing with contractual
rights. Oklahoma’s statutory scheme makes an
LLC a legal entity separate from its owners
with the filing of its executed articles of organization. 18 O.S.2011, § 2004; 18 O.S.Supp. 2004, §
2004. Whether an LLC is for a specific or perpetual duration is not significant to its status as
a separate entity. See 18 O.S.2011, § 2004; 18
O.S.2001, § 2004. An LLC “generally remains a
separate entity for state law purposes.” Timothy M. Larason, Using One-Member L.L.C.s as
“Disregarded Entities,” 73 Okla. Bar J. 1753,
1753 (2002). ANR executed the AMI agreement
as a business entity, not as its owner. Here,
ANR, as an LLC, is not a life in being regardless of whether it has an expiration date or it is
perpetual.1 Thus, the Option Provision is subject to the twenty-one-year limit imposed by
Vol. 87 — No. 17 — 6/25/2016
the rule against perpetuities and Melcher.
ANR’s right to participate in future wells is
indeterminable, does not vest within the twenty-one-year limit, and may never vest. Thus,
the Option Provision violates the rule against
perpetuity.
C. Reformation and Cy Pres
¶19 ANR also urges for the first time in its
Response to Appellees’ Petition for Certiorari
that, if the Option Provision is void, then it
should be reformed under Title 60, Sections
75-77 of the 2011 Oklahoma Statutes. Rule
1.26(a) of the Oklahoma Supreme Court Rules
requires that an appellant, here ANR, include
in its petition in error or a timely filed amended petition in error “any error or any issue
presented to and resolved by the trial court
which is supported by the record.” Okla.Sup.
Ct.R. 1.26(a), 12 O.S.2011, app. 1, r. 1.26(a). The
only exception is found in Rule 1.26(b), which
deems the petition in error amended to include
errors set forth in the brief in chief. In appeals
brought under Supreme Court Rule 1.36 (Accelerated procedure for summary judgments and
certain dismissals) as here, briefs are not filed
unless otherwise ordered by the appellate
court. In this case, no appellate briefs were
ordered by either the Court of Civil Appeals or
by this Court, precluding review of issues not
raised by the petition in error.
¶20 ANR failed to assert in the district court
that the Option Provision, if violating the rule
against perpetuities, should be reformed under
the cy pres doctrine. Having failed to raise the
issue in the district court, ANR could not assert
in the petition in error as an issue that the district court erred in not reforming the Option
Provision. Further, even with a liberal reading
of the petition in error, we find nothing which
raises the issue of reformation. For these reasons, ANR’s argument that the Option Provision is subject to reformation is not before this
Court.
V. CONCLUSION
¶21 ANR has failed to show that the district
court erred in granting the motion to dismiss.
The Court of Civil Appeals’ opinion is vacated.
The judgment of the district court is affirmed.
COURT OF CIVIL APPEALS’ OPINION
VACATED; DISTRICT COURT’S ORDER
AFFIRMED.
ALL JUSTICES CONCUR.
The Oklahoma Bar Journal
1239
TAYLOR, J.,
1. The date that ANR filed its executed articles of organization are
not part of the record. Title 18, Section 2004 now provides:
A limited liability company formed under this act is a separate
legal entity, the existence of which as a separate legal entity continues until cancellation of the limited liability completion of its
winding up, if any.
2016 OK 68
In the Matter of the Reinstatement of Harold
Glenn Drain, To Membership in the
Oklahoma Bar Association and to the Roll of
Attorneys
SCBD 6271. June 14, 2016
ORIGINAL PROCEEDING FOR
ATTORNEY REINSTATEMENT
¶0 Attorney seeks reinstatement to membership in the Oklahoma Bar Association following his administrative suspension and
voluntary resignation in 2006 for personal
reasons. The Professional Responsibility Tribunal and the Oklahoma Bar Association
unanimously recommended reinstatement.
Upon de novo review, this Court finds the
attorney has failed to satisfy the extraordinary burden of demonstrating that the
applicant for reinstatement possesses sufficient competency in the law necessary for
reinstatement after the applicant’s membership has been inactive for a period of
five years or more.
PETITION FOR REINSTATEMENT IS
GRANTED CONDITIONED UPON
PETITIONER’S SUCCESSFUL COMPLETION
OF THE OKLAHOMA BAR EXAMINATION;
COSTS ASSESSED IN THE AMOUNT
OF $175.75.
Harold Glenn Drain, Pro Se, Oklahoma City,
Oklahoma for Petitioner.
Gina Hendrix, General Counsel, Oklahoma Bar
Association, Oklahoma City, Oklahoma for
Respondent.
COLBERT, J.
¶1 Harold Glenn Drain (Petitioner) seeks
reinstatement of his membership to the Oklahoma Bar Association (OBA) and the Roll of
Attorneys after resigning from the practice of
law ten (10) years ago. The principal question
before this Court is whether Petitioner has presented clear and convincing evidence that he
possesses the competency and learning in the
law sufficient for reinstatement. After reviewing the matter de novo, this Court holds Peti1240
tioner has failed to demonstrate the requisite
competency and learning in the law required
for readmission.
FACTS
¶2 Petitioner was admitted to the Oklahoma
Bar Association in 1999 following graduation
from the University of Tulsa College of Law
and successful completion of the Oklahoma
Bar Exam that same year. Thereafter, Petitioner
served as a term law clerk for the United States
Bankruptcy Court for the Western District of
Oklahoma from 1999-2000. From 2000 to 2006,
Petitioner worked as an associate at a law firm,
served as “Of Counsel” in a subsequent law
firm, and ultimately established a private law
practice.
¶3 Due to personal family reasons, Petitioner
voluntarily tendered his resignation from the
practice of law to the OBA on June 16, 2006.
The OBA approved Petitioner’s resignation
effective July 6, 2006, pursuant to Article II,
Section 3 of the Rules Creating and Controlling
the Oklahoma Bar Association.1 At the time of
Petitioner’s resignation, no disciplinary proceedings or grievances were pending against
him. However, Petitioner was administratively
suspended for failing to pay $100.00 in CLE
late fees prior to the effective date of Petitioner’s resignation.
¶4 Following resignation, Petitioner was
employed in various positions. From August
2006 to July 2009, he worked in management
for a Rent-to-Own business which later merged
with Rent-A-Center and Petitioner moved to
Texas. In 2009, Petitioner accepted a paralegal
position with a law firm where he remained
until February 2011.
¶5 While working as a paralegal, Petitioner
accepted a part-time adjunct position teaching
paralegal training courses at an American Bar
Association-approved program for Kaplan
College in Dallas, Texas. In February 2011, Petitioner became Kaplan’s Program Director of
Paralegal Studies. That position included
teaching responsibilities, curriculum development, and some legal research.
¶6 In early 2014, Petitioner returned to Oklahoma City and worked as an adjunct instructor
with the paralegal program at Brown Mackie
College and later became the Director of Paralegal Studies at Vatterott College. To date, Petitioner continues to serve as the Director at
Vatterott College and also works for a local
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Vol. 87 — No. 17 — 6/25/2016
attorney performing legal research and other
law clerk duties.
See also, In re Reinstatement of Munson, 2010
OK 27, ¶ 12, 236 P.3d 96, 101.
¶7 On May 29, 2015, Petitioner filed this Petition for Reinstatement. A panel of the Professional Responsibility Tribunal (PRT) heard the
matter on August 14, 2015, and issued its
report on November 25, 2015, pursuant to Rule
11.5 of the Rules Governing Disciplinary Proceedings (RGDP), Okla. Stat. tit. 5, ch. 1, app.
1-A. In it, the PRT unanimously determined
that Petitioner’s reinstatement was warranted.
In so doing, the PRT found that Petitioner had
complied with all procedural rules governing
the reinstatement of attorneys. In addition, the
PRT found that Petitioner had established by
clear and convincing evidence that he had not
engaged in the unauthorized practice of law
and has demonstrated his competence in the
learning of the law required for readmission.
Petitioner filed a brief in support of his reinstatement on May 29, 2015. The OBA filed its
Waiver of Answer Brief on December 17, 2015.
¶10 In addition to the Rule 11.4 reinstatement
requirements, this Court also considers the following eight factors:
STANDARD OF REVIEW
¶8 This Court exercises exclusive jurisdiction
when it considers a petition for reinstatement
and applies a de novo standard of review. In re
Reinstatement of Blevins, 2002 OK 78, ¶ 3, 59
P.3d 510, 511. To assist in this Court’s determination, the PRT is charged with, among other
things, assessing an applicant’s moral character,
competency in the law, and whether the applicant engaged in the unauthorized practice of
law during the applicant’s period of suspension,
disbarment, or resignation. Id. See also Rule 11.5,
RGDP. However, those recommendations are
merely advisory as it is this Court’s “ultimate
responsibility” to decide whether reinstatement
is warranted. Id.
¶9 Rule 11, RGDP, governs reinstatement
proceedings for an applicant “whose name has
been stricken from the Roll of Attorneys for
non-payment of dues, or who has been suspended from the practice of law for a period of
longer than two (2) years or disbarred, or who
has resigned membership in the Association.”
Rule 11.1, RGDP. The burden for reinstatement
is more onerous than one seeking admission to
the OBA for the first time, regardless of how
the applicant’s licence was terminated. See
Rule 11.4, RGDP. The applicant must demonstrate by clear and convincing evidence that
reinstatement is warranted and that the applicant’s conduct conforms to the high standards
required by the Oklahoma Bar Association. Id.;
Vol. 87 — No. 17 — 6/25/2016
(1) the applicant’s present moral fitness; (2)
demonstrated consciousness of the conduct’s wrongfulness and the disrepute it
has brought upon the legal profession; (3)
the extent of rehabilitation; (4) the original
misconduct’s seriousness; (5) conduct after
resignation; (6) time elapsed since the resignation; (7) the applicant’s character, maturity, and experience when [he resigned]; and
(8) present legal competence.
In re Reinstatement of Munson, 2010 OK 27, ¶
13, 236 P.3d 101. (Emphasis added).
¶11 Upon a de novo review of the evidence
presented at the PRT hearing, this Court determines that the PRT’s findings as to all factors
relevant to reinstatement are meritorious,
excluding Petitioner’s competency in the law.
Notably, the record is devoid of any evidence
that Petitioner has satisfied the requisite mandatory continuing legal education requirements imposed upon Oklahoma practitioners.
And, based on Petitioner’s extended absence
from the practice of law, Petitioner must now
retake the Oklahoma Bar Examination as a prerequisite for readmission.
COMPETENCY AND LEARNING
IN THE LAW
¶12 Rule 11.5(c), RGDP, requires an applicant
“to take and successfully pass the regular
examination given by the Board of Bar Examiners of the Oklahoma Bar Association” if the
applicant’s membership has been inactive for a
period of five (5) years or longer. See In re Reinstatement of Farrant, 2004 OK 77, ¶ 6, 104 P.3d
567, 568. In essence, there is a presumption that
an applicant does not “possess sufficient competency in the law to be reinstated, absent an
extraordinary showing . . ..” Id., ¶ 7, 104 P.3d at
569. An absence from the practice of law for
five years or more weighs heavily against an
affirmative finding that the applicant has maintained competency. See In re Reinstatement of
Essman, 1987 OK 102, 749 P.2d 103. Unfortunately, Petitioner here, has failed to meet that
exacting standard.
¶13 In the ten (10) years since Petitioner’s
resignation, Petitioner has earned his living
The Oklahoma Bar Journal
1241
working in various employment positions.
Relying heavily on his work as an instructor,
director, and current paralegal, Petitioner
advances those law-related duties as evidence
of his competency in the law. While the valuable education Petitioner’s students receive is
related to the law, teaching paralegal courses to
non-attorneys and working as a paralegal does
not rise to the level of training and competency
expected of Oklahoma practitioners. Similarly,
Petitioner’s additional evidence of competency
— namely, that he regularly reads the Oklahoma Bar Journal, other legal publications, and
has taken four hours of CLE (including one
hour of legal ethics) — falls short of this Court’s
exacting standard. Oklahoma practitioners are
required to take twelve hours of continuing legal
education, including one hour of ethics, every
year. See Rule 3, Rules for Mandatory Continuing Legal Education, Okla. Stat. tit. 5, ch. 1, app.
1-B. Yet, to date, Petitioner has only completed
four hours since his resignation in 2006. Simply
put, Petitioner’s extended absence coupled with
his failure to maintain competency in the law
through OBA approved CLE courses weighs
heavily against an affirmative finding in favor of
Petitioner’s competency.
CONCLUSION
¶14 It is this Court’s duty to safeguard the
public by ensuring that applicants for reinstatement meet the qualifications necessary for
the practice of law. In re Reinstatement of
Thompson 1993 OK 152, ¶ 22, 864 P.2d 823,
827. Petitioner has failed to demonstrate his
competency and learning in the law by clear
and convincing evidence. In order for Petitioner to demonstrate his competency and
learning in the law, Petitioner must retake and
successfully pass the Oklahoma Bar Examination. Therefore, Petitioner, Harold Glenn
Drain’s application for reinstatement is granted contingent upon successful completion of
the Oklahoma Bar Examination.
¶15 The OBA has filed an unopposed application to assess costs in the amount of $175.75.
Petitioner is directed to pay the costs of this
proceeding in the sum of $175.75 within ninety
(90) days from the date this opinion becomes
final.
PETITION FOR REINSTATEMENT IS
GRANTED CONDITIONED UPON
PETITIONER’S SUCCESSFUL COMPLETION
OF THE OKLAHOMA BAR EXAMINATION;
1242
COSTS ASSESSED IN THE AMOUNT OF
$175.75.
CONCUR: Reif CJ, Combs VCJ, Edmondson,
Taylor, Colbert, and Gurich, JJ.
CONCUR IN PART DISSENT IN PART: Watt, J.
DISSENT: Kauger and Winchester, JJ.
Kauger, J. with whom Winchester, J. joins, I
would follow the recommendation of the PRT
and the OBA and reinstate the petitioner.
COLBERT, J.
1. Resignation of Member:
(a) Any member may resign his membership in the Association
by filing with the Executive Director a written resignation,
whereupon he shall automatically cease to be a member and
shall not thereafter be entitled to the privileges and advantages
of membership in the Association. The Executive Director shall
publicize the fact of resignation and shall cause a record thereof
to be made in the records of the Association and of the Clerk of
the Supreme Court.
(b) Any member who resigns shall remain subject to the Supreme
Court’s disciplinary jurisdiction and procedures for any misconduct committed while a member of the Oklahoma Bar Association. If, at the time of resignation, disciplinary proceedings or
investigations which result in disciplinary proceedings are pending against the resigning member, the files and records thereof
together with evidence later obtained, shall be impounded by
the Board of Governors and shall be considered in connection
with any subsequent application for reinstatement or with subsequent disciplinary action against him.
A member who resigns pending disciplinary proceedings or
pending investigation which might result in disciplinary proceedings must do so upon a form prescribed by the General
Counsel, approved by the Chief Justice, so drawn as to elicit
acknowledgment that the resignation is submitted pending disciplinary proceedings or investigation of charges, specifying
particularly the misconduct alleged; that the resignation is voluntary and with knowledge of its consequences; that the member agrees that he may be reinstated only upon full compliance
with the condition and procedure prescribed by these rules; and
that no application for reinstatement may be filed prior to the
lapse of five (5) years from the date of resignation.
Art. II, § 3, Rules Creating and Controlling the Oklahoma Bar Association, Okla. Stat. tit. 5, ch. 1, app. 1.
2016 OK 69
WILLIAM P. NELSON, and JON NELSON,
individually and as Co-Personal
Representatives and/or Co-Executors of the
Estate of Ethel A. Nelson, and as Co-Trustees
of the Ethel A. Nelson Revocable Trust and
as heirs and next of kin of Ethel A. Nelson,
Plaintiffs/Appellants, v. ENID MEDICAL
ASSOCIATES, INC., and DAVID
SHEPHERD, Defendants/Appellees, and
UNIVERSAL HEALTH SERVICES, INC.,
(UHS), individually and d/b/a St. Mary’s
Regional Medical Center; UHS OF
OKLAHOMA, INC., individually and d/b/a
St. Mary’s Regional Medical Center, ST.
MARY’S REGIONAL MEDICAL CENTER,
HENRY D. VAUGHAN, a.k.a H. DEAN
VAUGHAN a.k.a. HENRY D. VAUGHN a.k.a
The Oklahoma Bar Journal
Vol. 87 — No. 17 — 6/25/2016
H. DEAN VAUGHN, RONALD W.
SHRECK, and ENID EMERGENCY
PHYSICIANS, L.L.P., Defendants.
No. 110,665. June 14, 2016
CERTIORARI TO THE OKLAHOMA
COURT OF CIVIL APPEALS,
DIVISION NO. I
¶0 A medical malpractice action was
brought against several defendants in the
District Court for Garfield County. The
District Court, Hon. Dennis Hladik, District Judge, granted motions to exclude
testimony and for summary judgment
requested by two defendants. The trial
judge directed entry of a final judgment for
the two defendants and certified the order
for immediate review. Plaintiffs appealed
and the Oklahoma Court of Civil Appeals,
Division I, affirmed the order granting
summary judgment. Plaintiffs sought certiorari from this Court. We hold the opinions of the two witnesses on the issue of
causation satisfied the requirements of 12
O.S. § 2702, and reverse the summary judgment granted by the District Court.
CERTIORARI PREVIOUSLY GRANTED;
OPINION OF THE COURT OF CIVIL
APPEALS IS VACATED; JUDGMENT OF
THE DISTRICT COURT IS REVERSED;
AND THE PROCEEDING IS REMANDED
TO THE DISTRICT COURT FOR FURTHER
PROCEEDINGS CONSISTENT WITH THE
OPINION OF THIS COURT
Robert C. Smith, Jr., Monnet, Hayes, Bullis,
Thompson & Edwards, Oklahoma City, Oklahoma, for Appellants.
Hilton H. Walters, R. Gene Stanley, Rife Walters Stanley & Natarajan LLP, Oklahoma City,
Oklahoma, for Appellees.
EDMONDSON, J.
¶1 In a medical malpractice action we are
asked to review orders excluding testimony
from plaintiffs’ two expert witnesses and a
summary judgment granted to defendants
based upon the excluded testimony. We conclude the testimony should not have been
excluded. We reverse the orders of the District
Court excluding the testimony and granting
summary judgment, and remand the cause for
further proceedings consistent with the Court’s
opinion.
Vol. 87 — No. 17 — 6/25/2016
¶2 Mrs. Nelson went to the Emergency
Department of St. Mary’s Regional Medical
Center seeking medical assistance at 7:20 p.m.
on the evening of July 21, 2006. The emergency
room physician, Dr. Vaughan, ordered diagnostic tests, diagnosed an incarcerated hernia
with possible bowel obstruction, and attempted to reduce the hernia. Dr. Vaughan telephoned Dr. Shepherd, Mrs. Nelson’s internist
and primary care provider. Dr. Shepherd
instructed Dr. Vaughan to telephone Dr. Shreck,
a surgeon. Dr. Shreck came to the hospital,
reduced Mrs. Nelson’s hernia, and she was
admitted to the hospital.
¶3 One of the tests order by Dr. Vaughan was
a CT scan. The CT scan showed free air in Mrs.
Nelson’s abdomen and required immediate
surgery. The CT scan results were faxed to the
hospital at 1:50 a.m. on the morning of July
22nd, but neither Dr. Vaughan or Dr. Shreck
saw the report at that time.
¶4 The medical record indicates Dr. Shreck
reduced Mrs. Nelson’s incarcerated hernia by
manipulation. Mrs. Nelson became septic,
went into septic shock during the morning of
July 22nd, and she had a cardiac arrest while
being prepared for surgery to address a perforated or dead bowel. She was resuscitated.
After the surgery, Mrs. Nelson was given dopamine and Levophed to raise and control her
blood pressure. At 3:00 p.m. on July 22nd, Dr.
Shepherd switched Mrs. Nelson’s medication
to vasopressin. At approximately 11:00 p.m.,
Mrs. Nelson’s blood pressure started to fall,
her pulse became unstable and she died.
¶5 A medical malpractice action was brought
against Mrs. Nelson’s medical providers for
her last illness. Two defendants, Dr. Shepherd
and Enid Medical Associates, moved to exclude
the proposed testimony of plaintiffs’ two expert
witnesses. They argued each witness had not
provided legally proper testimony on the issue
of the cause of Mrs. Nelson’s demise because
the testimony did not satisfy the requirements
of Daubert v. Merrell Dow Pharmaceuticals, Inc.,
509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469
(1993). The two defendants also sought summary judgment because the causation element
of the malpractice claim action was missing
from plaintiffs’ claim.
¶6 The trial court ruled inadmissible the testimony from plaintiffs’ two expert witnesses
and granted summary judgment to the two
defendants. The trial court made an express
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1243
determination that there was no just reason for
delay and expressly directed the filing of a final
judgment. The plaintiffs appealed and the
Court of Civil Appeals affirmed the trial court’s
order. This Court granted plaintiffs’ petition
for certiorari.
Appellate Review Standard for Summary
Judgment and a Daubert Order Excluding
Testimony on Causation
¶7 The standard for appellate review of a
summary judgment is de novo and an appellate
court makes an independent and nondeferential review testing the legal sufficiency of the
evidential materials used in support and
against the motion for summary judgment.1
Summary judgment is proper when a party is
entitled to judgment “as a matter of law” based
upon the submitted evidentiary materials.2
¶8 Plaintiffs’ action is based upon allegations
that the two defendants proximately caused
the injuries. A medical malpractice claim, like
all negligence claims, contains three elements:
(1) a duty owed by the defendant to protect the
plaintiff from injury, (2) a failure to properly
exercise or perform that duty and (3) plaintiff’s
injuries proximately caused by the defendant’s
failure to exercise the required duty of care.3
¶9 Evidence of causation necessary for a negligence action, proximate cause,4 is usually an
issue of fact to be determined by a jury; and
proximate causation “becomes a question of
law for the court only when there is no evidence from which a jury could reasonably find
a causal nexus between the act and the injury.”5
If a defendant establishes there was no legally
cognizable causal connection between the defendant’s conduct and the injuries suffered by the
plaintiff, then the issue of causation becomes a
question of law, and a defendant is entitled to
summary judgment as a matter of law.6
¶10 Defendants’ combined motion for summary judgment argued: “Plaintiffs cannot establish causation, an element of negligence,
against Dr. Shepherd. Therefore, Dr. Shepherd
is entitled to summary judgment.” Defendants
supported this statement referencing the trial
court’s previous determination that Dr. Russell’s testimony was inadmissible upon application of the principles in Daubert v. Merrell
Dow Pharmaceuticals, Inc., supra.
¶11 In Christian v. Gray we explained a clear
abuse of discretion appellate standard applies
when we review a decision on the admissibili1244
ty of expert testimony, and a clear abuse of
discretion may be shown by an error of law or
an error of fact: “An abuse of discretion occurs
when a court bases its decision on an erroneous
conclusion of law or where there is no rational basis
in evidence for the ruling.”7 A trial court determination that no fact exists of record to support
the issue of fact submitted for resolution is a
determination of an issue of law and requires a
de novo review.8 Thus, a trial court determination that no fact exists in the trial court record,
i.e., a complete absence of proof, to support the
reliability of a particular expert for the purpose
of admission of that expert’s opinion presents
an issue for de novo review.9
¶12 In summary, we use a nondeferential
appellate standard and review de novo a trial
court’s order granting summary judgment,
and we use a nondeferential appellate standard and review de novo a trial court’s Daubert
order which determines the lack of facts supporting the reliability of a particular expert’s
opinion for the purpose of admission at trial.
The Daubert Challenge and the Record
¶13 The Oklahoma Evidence Code, § 2702,
provides: “If scientific, technical or other specialized knowledge will assist the trier of fact
to understand the evidence or to determine a
fact in issue, a witness qualified as an expert by
knowledge, skill, experience, training or education may testify in the form of an opinion or
otherwise, if: 1. The testimony is based upon
sufficient facts or data; 2. The testimony is the
product of reliable principles and methods;
and 3. The witness has applied the principles
and methods reliably to the facts of the case.”10
An expert’s opinion must be “based on what
is known,”11 i.e. facts and data, that are then
used as part of a reliable method in forming
an opinion.
¶14 Plaintiffs’ response to the Daubert motion included Dr. Russell’s opinion, and various articles and portions of depositions. His
opinion relies on various published peerreviewed articles. One of these is an article stating doses of vasopressin greater than 0.04
units/minute have been associated with
decreases in cardiac output and cardiac arrest.
Mrs. Nelson received a vasopressin “fixed
dose” of 0.20 units/minute which was not
tapered during infusion, although the order
had been given by Dr. Shepherd to taper her
dose. Dr. Russell testified that “the use of vasopressin in septic shock is off label... [and] many
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Vol. 87 — No. 17 — 6/25/2016
of the drugs we use in intensive care are by
some definition off label ... [and this results in
dosing off label] because there’s no label for
vasopressin in septic shock.” Dr. Russell did
not object to Mrs. Nelson receiving vasopressin, he objected to the dosage she received and
that it was not a tapered dosage.
¶15 Defendants argue the recommended
dosage for vasopressin in the published articles
relied on by Dr. Russell are overly cautious
concerning potential cardiac complications
and not based upon science. Attached to plaintiffs’ response is a statement by Dr. Russell stating that it is not speculation that a 0.2 units/
min dose of vasopressin can cause cardiac
arrest. He stated that “the precise dose of vasopressin that causes coronary vasoconstriction
in humans is difficult to know, but that based
on my studies and the literature the dose is in
the range of 0.08 to .1 units/minute.” He relies
upon a 2001 published study,12 and statements
in this study are challenged by defendants.
Defendants argue the opinions by Dr. Russell
and Dr. Sheena are mere speculation and are
not based upon scientific research or proper
clinical observation. Defendants’ motion is accompanied by photocopies of several articles
in their Appendix of Literature.
¶16 Dr. Russell relies upon his clinical experience (observation), a published report based
upon a review of the literature for treatment of
septic shock patients, published studies utilizing case reports, an animal study, a published
manual stating some effects of vasopressin, a
document on vasopressin representing the
source of its information as a “package insert,”
a document authored by an individual with
the academic credential of a “Pharm. D.,” and
to some extent the additional studies cited in
these publications.
¶17 Defendants challenge Dr. Russell’s reliance on an article: “Surviving Sepsis Campaign
guidelines for management of severe sepsis
and septic shock,” with fourteen authors for
the Surviving Sepsis Campaign Management
Guidelines Committee, sponsored by eleven
different medical professional organizations,
and published by the Society of Critical Care
Medicine in Critical Care Med, as well as in
Intensive Care Medicine. The methodology of
this article was based upon “a systematic
review of the literature” for the purpose of
developing “management guidelines for severe
sepsis and septic shock,” and the study includes
a recommendation for vasopressin dosage.
Vol. 87 — No. 17 — 6/25/2016
This article states “Doses of vasopressin >0.04
units/min have been associated with myocardial ischemia, significant decreases in cardiac
output, and cardiac arrest.”13 This article grades
its recommendations and evidence and qualifies its statement concerning vasopressin as
supported “by level IV or V evidence:” “nonrandomized, historical controls and expert
opinion” and “Case series, uncontrolled studies, and expert opinion.”14 Dr. Russell participated in some of the research reported in this
article, including an article published in Intensive Care Med. in 2001,15 an article which defendants challenge as unscientific if used for
adopting its observation that dosages in excess
of 0.04 units/minute can cause or create cardiac complications.
¶18 A portion of the trial court’s order not
challenged in this proceeding states “For the
purpose of this motion, . . . the Vasopressin
dosage administered by Dr. Shepherd was
excessive for Mrs. Nelson’s ailment and a negligent
act.” (Emphasis added). Attached to plaintiffs’
response to Dr. Shepherd’s Daubert motion is a
portion of Dr. Shepherd’s deposition where he
explained: “I think the dose I wrote was a mistake. The question, I guess, is whether or not it
caused harm.” Thus, while defendants appear
to agree with recommendations in the literature for the proper dosage of vasopressin in
patients similar to Mrs. Nelson, they disagree
whether statements in the literature associating
a high dose with adverse cardiac effects are
conclusions based in science.
¶19 One of the resources relied on by Dr.
Russell is a 2004 animal study involving Yorkshire pigs and performed at a university hospital in Pittsburgh. The abstract of the study
states in part, “The data indicate that the safe
dose range for exogenous vasopressin in septic
shock is narrow and support the current practice
of fixed low-dose administration, generally 0.04
units/min and in no case exceeding 0.1 units/
min.” Dr. Russell cites an American Heart Association manual with a Pharmacology Summary
Table stating “Precautions/Contraindications”
for vasopressin: “Potent peripheral vasoconstrictor. Increased peripheral vascular resistance may provoke cardiac ischemia and angina. Not recommended for responsive patients
with coronary artery disease.” Dr. Russell
does not rely on only case studies, or only
animal studies, or only his clinical experience
as a physician who studies this topic, or only
his understanding of, and argument concern-
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1245
ing, the pharmacological properties of vasopressin, but on all of these areas.
¶20 Defendants filed an appendix of literature containing 10 articles,16 of three of which
Dr. Russell is one of the authors,17 one in which
Dr. Russell is responding to comments on a
published study,18 and one involving a controlled infusion of vasopressin at 0.04 units/
minute and which supports Dr. Russell’s conclusion on a beneficial dosage.19
¶21 In the remaining five articles, three do
not expressly contradict Dr. Russell’s testimony on causation, but appear to have been used
to show what is generally accepted concerning
vasopressin. The first, Beale and Hollenberg, et
al., (2004), states “there is still inadequate
understanding as to the mechanisms and
potential therapeutic risk/benefit ratio of the
use of vasopressin in septic shock. At this
stage, vasopressin should only be used as part
of properly constructed clinical trials until
more information is available.”20 Beale and
Hollenberg’s conclusion may be simply stated, don’t use vasopressin unless in a clinical
trial because its mechanisms are not fully
understood.
¶22 The second, an article by J.C. Russell and
P.J. Glover (2002), reviews the published studies and repeats Dr. J.A. Russell’s observation
that some cardiac arrests occurred in patients
who had received “doses greater than 0.05 U/
min.” The article also states “Although heart
rate may slow, bradycardia has not been reported in septic patients with low dose infusions.”
These authors note: “There has been some concern expressed over the possibility of excessive
vasoconstriction caused by vasopressin. Pharmacological doses have been shown to cause
significant coronary and mesenteric ischaemia
and it has been suggested that vasopressin
should be used cautiously, if at all, in patients
with symptomatic coronary artery disease.”21
This study also states that data concerning the
clinically important adverse effects of vasopressin are lacking due to small study sizes
and wide patient variability.
¶23 The third article, by Klinzing & Simon
(2003), notes Dr. Russell’s study which “found
a decrease in cardiac index when vasopressin
was given in doses 0.04 IU/min.” These authors
note that “vasopressin has well-known vasoconstrictive properties in the splanchnic area.”
They found: “Globally vasopressin caused a
significant decrease in heart rate, cardiac out1246
put, and oxygen uptake.”22 The reduction in
global oxygen delivery was partially compensated by increased oxygen extraction. These
authors stated “a substantial reduction in
cardiac output” was observed with a vasopressin dosage, “a mechanism for increased
fractional splanchnic flow with the decreased
cardiac output during vasopressin infusion is
also unknown.”23
¶24 The last two articles contain a critical
comment on Dr. Russell’s conclusion on causation of serious cardiac complications from
vasopressin. The first, Torgersen and Dünser
(2010), involved research where different doses
were administered to two groups, one group of
25 persons received 0.067 and the other group
of 25 persons received 0.033 IU/minute dose.24
They state Dr. Russell’s 2001 article “did not
prove a causative relationship between the
occurrence of adverse events and VP doses
>0.04 IU/min.” However, their opinion on Dr.
Russell’s failure of proof is based upon their
characterization that Dr. Russell’s study was
“uncontrolled” and “observational.” They do
state that results of their study and one by
Luckner and Mayr (Crit Care Med 35:2280-2285)
“are in contrast to the findings of a cases
series” study authored, in part, by Dr. Russell.
It appears the distinction being drawn by the
data reported by Torgersen and Dünser
involves the beneficial use of a dosage at 0.066
or 0.067 IU/min in the Torgerson/Luckner
studies instead of Dr. Russell’s recommended
dosage of 0.04 IU/minute and less.
¶25 Torgersen and Dünser also state that certain baseline differences existed between their
0.033 IU/minute group and their 0.067 group,
and “these baseline differences do not allow
drawing firm clinical conclusions on the effects
of the two AVP dose regimes on heart function.”25 Torgersen and Dünser’s study had 50
patients with 25 receiving the higher dose, and
Dr. Russell’s study involved 50 patients receiving various amounts of vasopressin and cardiac arrests suffered by four patients who had a
dosage “more than 0.05” units per minute.
¶26 The second article is a 2010 published
study by authors Bauer and Lam, and which
reviews recently published studies, including
“the Vasopressin and Septic Shock Trial (VASST)
and its subgroup analyses.”26 Although the article opines, “A major challenge in the attempt to
determine which dose of arginine vasopressin
should be used is that the true physiologic
arginine vasopressin response during septic
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Vol. 87 — No. 17 — 6/25/2016
shock has not been fully elucidated,” it concludes “since arginine vasopressin doses as
low as 0.01 unit/minute have yielded both
physiologic replacement levels of vasopressin
and blood pressure increase, it may be a reasonable starting dose for patients.”27 This recommended dose is based upon certain physiological responses.
¶27 Bauer and Lam challenge the conclusion
“Doses of vasopressin >0.04 units/min have
been associated with myocardial ischemia, significant decreases in cardiac output, and cardiac arrest” since this study [by Dr. Russell and
others] did not include a “matched cohort.”28
They conclude: “These data suggest that the
occurrence of adverse effects of arginine vasopressin in general and with arginine vasopressin doses above 0.04 unit/minute may be
lower than previously hypothesized.” Bauer
and Lam cite two published studies, one of
which was co-authored by Dr. Russell and
published in the New England Journal of Medicine in 2008, and the other article was published in Intensive Care Med in 2006.
¶28 Dr. Russell disagrees with Bauer and
Lam’s criticism of his 2001 study and argues
that his 2008 “randomized controlled trial of
vasopressin” excluded patients with acute coronary syndromes and or severe heart failure,
and adverse reactions to high dose vasopressin
could be observed in patients with a history of
heart disease because of the reported adverse
effect of decreased cardiac output associated
with a high dose: “Thus, when vasopressin is
infused at a safe, low dose of up to 0.03 units/
minute, there was not an increased risk of cardiac arrest, emphasizing again Dr. Russell’s
research and recommendations repeatedly in
his studies of the importance of the use of low
dose vasopressin infusion in septic shock.”29
Indeed, some of the publications used by
Defendants support Dr. Russell’s conclusion
for a vasopressin dosage of 0.04 units/minute
or less in circumstances of septic shock.30
¶29 In summary, defendants argued “it is
speculation that Vasopressin causes a decreased
cardiac index and cardiac arrest.” Klinzing and
Simon state an observed reduction in cardiac
output when vasopressin is used, although
they do not explain the causal mechanism. J.C.
Russell and P.J. Glover state that “Pharmacological doses have been shown to cause significant coronary and mesenteric ischaemia . . . .”
Beale and Hollenberg’s conclusion may be
simply stated, don’t use vasopressin unless in
Vol. 87 — No. 17 — 6/25/2016
a clinical trial because its mechanisms are not
fully understood. Torgersen and Dünser criticize Dr. Russell’s conclusion associating higher
dosages of vasopressin with cardiac complications, but decline to draw “firm clinical conclusions” on the effects of the two studied dose
regimes on heart function. Dr. Russell disagrees with some of the conclusions of Bauer
and Lam.
Application of Daubert and
General Causation
¶30 In Christian v. Gray, we explained causation is often divided into general causation and
specific causation in some controversies involving allegations of injury resulting from a person’s exposure to a harmful substance. General
causation is whether a substance is capable of
causing a particular injury or condition in the
general population, while specific causation is
whether that substance caused the particular
individual’s injury.31 Defendants raised the
issue of general causation by challenging the
opinion of plaintiffs’ witnesses that vasopression is a coronary vasoconstrictive or that it
causes a decreased cardiac index or cardiac
arrest. When an external agent is the alleged
cause of injury, an expert witness typically
“demonstrate[s] that the medical and scientific
literature provides evidence that in some circumstances the exposure under consideration
can cause the outcome under consideration,”
(thus showing general causation);32 and the
next step is to “apply this general knowledge
to the specific circumstances of the case at
hand, incorporating the specifics of exposure,
mitigating or exacerbating influences, individual susceptibilities, competing or synergistic
causes, and any other relevant data.”33
¶31 Generally, a trial court “should focus on
the experts’ methodology rather than the conclusions that they generate.”34 But because
conclusions and methodology are not entirely
distinct from one another, “[a] court may conclude that there is simply too great an analytical
gap between the data and the opinion proffered,” i.e., whether the expert has unjustifiably
extrapolated from an accepted premise [or data]
to an unfounded conclusion.35 Federal courts
have stated a trial judge is not required to be a
scientist, but is required to determine whether
the expert’s method in reaching a conclusion is
“scientifically sound” “and that the opinion is
based on facts which sufficiently satisfy [Federal] Rule 702’s reliability requirements.”36
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1247
¶32 The trial court found significant that “Dr.
Russell’s opinion is not supported by any published articles.” The trial court noted that Dr.
Russell “relies heavily” upon a published study
he authored which recommended a fixed specific dose of vasopressin for patients with severe
septic shock. The trial court found legally significant the statement in the article that the
study does not “draw any conclusions regarding the effect of vasopressin on mortality in
severe septic shock.” The trial court stated that
Dr. Russell has “not tested his theory,” and his
study has been criticized. The trial court did not
comment on studies which rely on information
in Dr. Russell’s studies. This analysis by the trial
court addresses general causation.
¶33 Defendants’ argument on general causation is that there is simply too great an analytical gap between the data and the opinion
proffered on vasopressin causing cardiac complications. They cite the Tenth Circuit opinion
in Hollander v. Sandoz37 in support of their
argument. In Hollander, a witness gave an
opinion on bromocriptine, but the “generic
assumption that bromocriptine behaves like
other ergot alkaloids carries little scientific
value.”38 In Hollander, a witness opined in support of plaintiff’s action that an active ingredient in the drug caused an increase in blood
pressure, but it was held necessary for the witness to give a pharmacological explanation
why animal studies showed decreases in blood
pressure from this same ingredient, and this
explanation had not been tested. In Hollander,
the use of case reports to show general causation was rejected, in part, because of the “scant
number” of case reports showing injury compared to the number of persons who had used
the drug.39 Hollander does not require epidemiology toxicologic studies to satisfy the scientific
reliability of an expert witness on the issue of
causation.
¶34 Evidence of general causation may take
different forms utilizing different methods of
analysis, one of which may be the form of peerreviewed published studies using various analytical methods.40 Of course, a professional
publication “is not a sine qua non of admissibility; it does not necessarily correlate with reliability.”41 Dr. Russell’s reliance upon published
professional peer-reviewed studies is one
methodology which satisfies Daubert and 12
O.S. § 2702 when it is based upon studies
which comport with the dictates of good science, as opposed to an opinion based upon
1248
“junk science.” In Daubert, the Supreme Court
developed a four-pronged but flexible test to
determine the scientific validity and thus the
evidentiary relevance and reliability of the principles that underlie a proposed submission: (1)
peer review and publication; (2) the known or
potential rate of error; (3) general acceptance;
and (4) testing a theory by attempting to find
evidence to disprove it (falsification).42
¶35 A nonexhaustive list of accepted methodologies for scientifically determining general
causation of an injury from a toxic and external
substance includes epidemiology and in vivo
and in vitro toxicologic studies as well as chemical analysis of the substance and adverse case reports. These methods have greater and lesser
degrees of scientific reliability for conclusions
determining causation due to varied techniques for acquiring the data and the type of
data collected.43 For example, while two authors
place “chemical structure analysis” and “adverse case reports” at “the bottom of the scientific probity barrel,” they do recognize that
these two methods “are marginally relevant to
the question of general causation.”44 The Reference Manual on Scientific Evidence states case
reports may be all that is available, and while
causal attribution based on case studies must
be considered with caution, “such studies may
be carefully considered in light of other information available.”45 Generally, toxicology models based upon animal studies may be used to
determine toxicity in humans, within certain
limitations, including the limitation of extrapolating results to a different species.46 The third
edition of the Reference Manual on Scientific Evidence explains when considering the presence
or absence of risk factors “physicians will often
use any type of evidence that might support
causation, for example, biological plausibility,
physiological drug effects, case reports, or temporal proximity to exposure.”47 Additionally,
“Although physicians use epidemiological
studies in their decisionmaking, ‘they are
accustomed to use any reliable data to assess
causality, no matter what their source’ because
they must make care decisions even in the face
of uncertainty.”48
¶36 Dr. Russell’s opinion is not voiced contra
mundum, against the world. Some do not agree
with his conclusions and object to one of his
studies lacking a matched cohort. The defendants’ view of the nature of scientific proof
appears to be that it must speak with one voice
to satisfy the “general acceptance” element to
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Vol. 87 — No. 17 — 6/25/2016
Daubert and be truly scientific. In a post-Joiner
case,49 the U.S. Court of Appeals for the First
Circuit has noted “[t]he mere fact that two
experts disagree is not grounds for excluding
one’s testimony;”50 and the First and Third Circuits have noted “[W]itnesses may be competent to testify as experts even though they may
not, in the court’s eyes, be the ‘best’ qualified.
Who is ‘best’ qualified is a matter of weight
upon which reasonable jurors may disagree.”51
This Court has made similar observations.52
While a court must assess science and not
merely witness qualifications,53 it “need not
weigh or choose between two legitimate but
conflicting scientific views.”54 Two expert witnesses may each rely upon good science and
reach different conclusions.
¶37 Dr. Russell’s opinion is based upon published case studies, an animal study, clinical
experience,55 and a pharmacologic description
of vasopressin which, according to his opinion,
give consistent information in support of his
opinion on high-dose vasopressin. Dr. Russell’s opinion concerning cardiac complications
with vasopressin associated with a reduction
in cardiac output and coronary ischemia is
based upon literature in the record before us.
The trial court stated that Dr. Russell is “highly
credentialed,” “has been involved in research
on Vasopressin as it relates to septic shock,”
and “presented numerous papers on the topic
and presented talks at international meetings.”
Dr. Russell gave an opinion based upon his
own published research prior to Mrs. Nelson’s
injury. In the Ninth Circuit Court of Appeals
after remand in Daubert, the appellate court
made the following observation.
. . . experts whose findings flow from existing research are less likely to have been
biased toward a particular conclusion by
the promise of remuneration; when an
expert prepares reports and findings before
being hired as a witness, that record will
limit the degree to which he can tailor his
testimony to serve a party’s interests. Then,
too, independent research carries its own
indicia of reliability, as it is conducted, so to
speak, in the usual course of business and
must normally satisfy a variety of standards to attract funding and institutional
support. Finally, there is usually a limited
number of scientists actively conducting
research on the very subject that is germane to a particular case, which provides a
natural constraint on parties’ ability to
Vol. 87 — No. 17 — 6/25/2016
shop for experts who will come to the desired conclusion. That the testimony proffered by an expert is based directly on
legitimate, preexisting research unrelated
to the litigation provides the most persuasive basis for concluding that the opinions
he expresses were “derived by the scientific method.”
Daubert v. Merrell Dow Pharm., Inc., 43 F.3d
1311, 1317 (9th Cir. 1995) cert. denied, 516 U.S.
869, 116 S.Ct. 189, 133 L.Ed.2d 126 (1995).
Some do not agree with Dr. Russell’s conclusions while others use his studies in conjunction with their own for explaining the possible
roles of vasopressin. While some may not agree
with Dr. Russell’s conclusions, his method of
combining arguably consistent case studies,
including those predating Mrs. Nelson’s injury,
animal studies, evidence of known pharmacologic attributes of a drug, and all in the absence
of contrary scientific studies or other evidence
of greater reliability, satisfy Daubert’s reliability
standard for showing general causation. Dr.
Sheena’s opinion concerning a high dosage of
vasopressin and its relationship to general causation and cardiac complications is based upon
his clinical experience,56 the same literature as
Dr. Russell and Dr. Russell’s opinion. Dr. Sheena’s opinion satisfies Daubert on the issue of
general causation.
Application of Daubert and Specific Causation
¶38 Specific causation is the cause of the particular individual’s injury. In this case, specific
causation of Mrs. Nelson’s injury is based
upon Drs. Russell and Sheena’s opinions on
internal causation (the underlying physiological mechanisms producing observed signs and
symptoms) and external causation (the relationship between environmental factors (such
as chemical exposure or a medication) and the
illness actually suffered by Mrs. Nelson.57 In
summary, is the dosage of vasopressin the specific cause Mrs. Nelson’s injury?58
¶39 Dr. Russell testified that the dose of vasopressin given to Mrs. Nelson “certainly could
be coronary vasoconstrictive.” He was asked if
the dose “was vasoconstrictive,” and he replied
that “we can’t measure that directly,” and then
replied “it’s probable, yes.” He explained vasopressin has a dose range when it changes from
being vasodilatory to vasoconstrictive on the
coronary arteries. He also explained the very
high dose which would lead to vasoconstriction
of end organs, which would increase the work-
The Oklahoma Bar Journal
1249
load on the heart, with potential cardiac side
effects such as arrhythmias, and cardiac arrest
due to asystole or profound bradycardia. He
stated his opinion that “the relatively sudden
onset of the arrhythmias leading to profound
bradycardia leading to essentially asystolic cardiac arrest was contributed to in a significant
manner by the very high dose of Vasopressin.”
¶40 The trial court characterized Dr. Russell’s medical opinion on causation as a legally
insufficient “educated guess.” The trial court
pointed to Dr. Russell’s testimony that arrhythmia and bradycardia may occur, (1) in the
absence of a high dose of vasopressin, or (2) on
a normal dose of vasopressin, or (3) on a normal dose of dopamine or Levophed, or (4) as a
result of septic shock. However, Dr. Russell testified the dose of dopamine Mrs. Nelson received
would have a significantly less vasoconstrictive
effect than the high dose of vasopressin she
received. He testified Dr. Shepherd’s use of vasopressin as a medication for Mrs. Nelson was
proper. However, he also testified the vasopressin dose she was prescribed and received
was too high and was sustained for too long a
period of time.
¶41 On the issue of specific causation the
trial court states Dr. Russell has not ruled out
other potential causes of Mrs. Nelson’s death.
Dr. Russell testified that as patients “stabilize”
their dosage of norepinephrine is tapered and
then stopped, and then the dosage of vasopressin is tapered and then stopped. He stated one
of his concerns was that although there was an
order to taper the vasopressin, “there was a
fixed dose, as I reviewed it, which remained at
that dose, as I understood the chart, for the
duration that it was infused.” He explained the
“standard dose” for septic shock patients at Dr.
Russell’s hospital. He was asked why he
thought the use of vasopressin caused Mrs.
Nelson to have a cardiac arrest. He stated,
“first, the very high dose which would lead to
vasoconstriction of end organs, which would
increase the workload on the heart, would
potentially cause cardiac side effects such as
arrhythmias that were noted, and that does lead
to and has been accompanied by cardiac arrest
due to asystole or profound bradycardia. So my
interpretation is that the relatively sudden onset
of the arrhythmias leading to profound bradycardia leading to essentially asystolic cardiac
arrest was contributed to in a significant manner
by the very high dose of vasopressin.” He was
then asked and replied affirmatively that similar
1250
conditions may arise in the absence of vasopressin with a patient in septic shock, or with a
patient administered Levophed or dopamine.
¶42 He was asked if his opinion was speculation on the proper dosage of dopamine and
vasopressin and their potential vasoconstrictive effects. He replied his opinion was a judgment based upon clinical responses to doses of
dopamine at a specific amount compared to
“usual doses of vasopressin,” “and then looking at animal studies, looking at higher doses
of vasopression and higher doses of dopamine.” He stated “In humans we don’t directly
measure vasoconstriction, and so we have
indirect interpretation of other findings. So
when we say ‘vasoconstriction,’ we don’t have
a test to go and measure it.” He further explained data on humans includes studies on
dose responses in sepsis patients to different
vasopressors and measurements are taken for
change of blood pressure, cardiac output, “and
change in other vasopressor requirements”
“which give us an indirect interpretation of
what the vasoconstriction activity is.”
¶43 Dr. Sheena testified Mrs. Nelson’s death
was caused by “a combination of septic shock
and the overdose of vasopressin.” He quantified Mrs. Nelson’s chance of survival immediately post-op as over fifty percent. He stated
that a few hours after post-op her chance of
survival had been improving because “her
clinical parameters had improved.” He testified all decisions made by Dr. Shepherd were
appropriate except for the dosage of the vasopressin: “he ordered an overdose of vasopressin in treating the patient.”
¶44 The trial court pointed out Dr. Sheena’s
statements on potential causes of arrythmias
other than a high dose of vasopressin. However, the trial court also stated that “For the
purpose of this motion, this court assumes Dr.
Sheena is an experienced and credentialed
physician, and that the Vasopressin dosage
administered by Dr. Shepherd was excessive
for Mrs. Nelson’s ailment and a negligent act.”
The trial court stated: “Daubert requires a
showing that Dr. Sheena used a reliable, analytically appropriate method, that has been
tested and subjected to peer review, has a known
rate of error, and is widely accepted within the
medical community. Dr. Sheena offers no proof
on these points and nothing to rule out that
Dopamine, Levophed, septic shock, or some
other natural cause was the sole cause of Mrs.
Nelson’s death.” The trial court concluded that
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Dr. Sheena’s opinion was mere ipse dixit and his
proposed testimony was inadmissible.59
¶45 Dr. Sheena is employed as an emergency
room physician at a university medical center
and a heart hospital, and once a month teaches
medical residents, interns, and medical students at Baylor University Medical Center. He
is also employed as a “hospitalist,” a physician
who admits patients to a hospital from an
emergency room, and also treats them during
their hospital stay, including patients in an
intensive care unit.
¶46 He stated his experience working as a
physician in small hospitals. His opinion in
this case was based upon his experience, education, and his review of Mrs. Nelson’s “entire
chart.” He stated that in his medical practice “I
see people with incarcerated hernias all the
time” and he has also treated patients with a
perforated bowel and sepsis. However, his
experience treating patients with septic shock
secondary to a perforated bowel was no more
than twenty-five patients in his career.
chance of survival had been improving because
“her clinical parameters had improved.” He
explained, “she had had surgery, and she had
finally gotten a couple doses of antibiotics . . .
she was in a situation where she was improving
as of this point that they started the vasopressin, and you can see how that led to a prompt
worsening of her conditioning. . . her clinical
worsening had to do with the vasopressin.” He
stated her chance of survival after surgery was
over 50%, and it continued to improve, based
on certain clinical parameters, during the five
or six hours post-op before the vasopressin
began to be administered. He stated that her
condition even improved following the initial
dose of vasopressin. He concluded that seven
hours after the initial dose the high dosage created a cardiac rhythm disturbance.
¶49 The trial court stated Dr. Russell’s opinion did not rule out other potential causes of
Mrs. Nelson’s death because Dr. Russell stated
the possibility of Mrs. Nelson experiencing a
cardiac arrest in the absence of the dose of
vasopressin she received. Similarly, the trial
court stated Dr. Sheena “offers no proof on
these points and nothing to rule out that Dopamine, Levophed, septic shock, or some other
natural cause was the sole cause of Mrs. Nelson’s death.” The trial court’s error on specific
causation shown by differential diagnosis is
that the opinion need not “rule out” every
other potential cause, i.e., vasopressin need not
be the sole cause for the opinion testimony to be
admissible.
¶47 He stated his experience in prescribing
vasopressin for his patients. He opined concerning Mrs. Nelson’s dosage of vasopressin:
“vasopressin at those dosages frequently
causes. . . decrease[d] blood flow to the splanchnic circulation. It also affects the heart, and in
this case, I think it caused her to have a rhythm
disturbance....” At this point in his deposition,
Dr. Sheena was not asked what authority he
was relying on for his opinion on the proper
dosage of vasopressin, but was asked whether
rhythm disturbances could be caused by dopamine, Levophed, or septic shock as well as the
dosage of vasopressin Mrs. Nelson received.
He subsequently stated the range for a “standard dose for vasopressin.” He stated vasopressin is a vasoconstrictive, and the appropriate dosage will depend upon the patient, and
there are relatively higher appropriate dosages
in certain circumstances when a patient is not
in septic shock. He was not asked to explain his
authority for this “standard dose.” He was
asked how he calculated Mrs. Nelson’s percentage chance of survival and how it changed
during her hospital stay. He was not asked to
explain his opinion on the degree or percentage of contribution to her death which he
attributed to the specific dosage of vasopressin
she received.
¶50 The Reference Manual on Scientific Evidence notes that “many cases involving issues
of external causation have involved witnesses
who testify having arrived at an opinion on
cause through a process of ruling out or eliminating other causes, a process frequently
referred to by the courts and witnesses as ‘differential diagnosis’ or ‘differential etiology.’”60
The U.S. Court of Appeals for the Tenth Circuit
has explained the method of “differential diagnosis” in the medical context “is a common
method of analysis, and federal courts have
regularly found it reliable under Daubert.”61 Differential diagnosis is a method where the expert
makes a “determination of which of two or more
diseases with similar symptoms is the one from
which the patient is suffering, by a systematic
comparison and contrasting of the clinical findings,” i.e., a determination of cause.62
¶48 He stated that a few hours after post-op,
and prior to being administered vasopressin, her
¶51 Plaintiffs’ witnesses used the method of
differential diagnosis to evaluate data and then
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1251
make an opinion on the cause of Mrs. Nelson’s
demise. In summary, a physician performs a
differential diagnosis by first “ruling in” all
scientifically plausible causes of the plaintiff’s
disease or injury, and then “ruling out” the
least plausible causes of disease or injury until
the most likely cause remains.63 Defendants
argued the testimony of plaintiffs’ experts possessed the quality of speculation because they
could not (1) “rule in” vasopressin as a coronary vasoconstrictive or that it causes a decreased cardiac index or cardiac arrest, and (2)
rule out other potential causes of cardiac arrest
which were specific to Mrs. Nelson. While the
first objection is one of general causation, the
latter raises the issue whether the high dose of
vasopressin was a specific cause of the injury.
¶52 Most if not all elementary textbooks on
statistics explain a statistical truism that correlation is not causation,64 and we have explained,
in the context of an individual as opposed to a
group, an opinion may not exclusively use the
related post hoc ergo propter hoc (after this,
because of this) reasoning to show causation.65
But the fact that correlational evidence cannot
definitively establish causality does not mean
that it may not be some evidence of causality.
An expert’s opinion may rely on a temporal
relationship between an alleged cause and subsequent injury as one factor to show causation.66
¶53 The facts specific to a patient’s exposure
to an external cause, in this case a high dosage
of vasopressin and the doses of dopamine and
Levophed and other medications, are facts specific to a particular individual, and are part of
Dr. Russell’s analysis and Dr. Sheena’s analysis
of specific causation. Medical diagnosis “is not
an exact science,” “physicians make probabilistic judgments on a day-to-day basis,” and they
must usually consider and assess alternative
causal models before accepting a particular
model as the preferred explanation.67 Dr. Russell and Dr. Sheena considered dopamine and
Levophed and discounted them as causes for
Mrs. Nelson’s cardiac arrest. They considered
alternative causes and offered a reasonable
explanation as to why they still believed that
the defendants’ actions were a substantial factor in causing the injury.68
¶54 Dr. Sheena testified concerning his experience in prescribing vasopressin for his
patients. He testified Mrs. Nelson’s death was
caused by “a combination of septic shock and
the overdose of vasopressin.” Dr. Sheena was
critical of Dr. Shreck in not finding the CT scan
1252
results, starting Mrs. Nelson on antibiotics
sooner, and a delay in her surgery of “a fourhour delay, about.” Dr. Sheena’s only criticism
of Dr. Shepherd was the vasopressin dosage.
Dr. Sheena testified the dosage was a contributory cause to Mrs. Nelson’s injury, with her
decreased chance of survival based upon the
vasopressin dose.
¶55 In Robinson v. Oklahoma Nephrology Associates, Inc., we explained “A defendant whose
conduct contributed to cause a plaintiff’s injury is liable for the injury even if his conduct
was not sufficient by itself to cause the injury.”69
Classification of tortfeasors based upon the
type of cause each contributed to a plaintiff’s
injury is nothing new, and is found in our opinions discussing joint and concurrent tortfeasors,70 as well as well-known legal treatises on
causation.71 In Christian v. Gray, we noted the
use of the differential diagnosis methodology
to isolate the “most probable” cause or the
“most likely” cause of injury.72
¶56 Because the trial court viewed Dr. Sheena’s testimony as inadmissible without him
“ruling out” other causes of Mrs. Nelson’s cardiac arrest, the trial court did not properly
address the scope of Dr. Sheena’s opinion on
contributory causes of the cardiac arrest including the vasopressin dosage. The trial court
ruled Dr. Sheena’s testimony was inadmissible
because it failed to rule out four potential
causes, and one of these expressly stated by the
trial court was septic shock. Dr. Sheena’s testimony specifically and expressly “ruled in” septic shock
as a contributing cause and gave his opinion how
Mrs. Nelson’s septic shock should have been
treated upon a more timely viewing of her CT
scan and the medical response to such a viewing, such as administration of antibiotics.
¶57 Of course, classifying Dr. Sheena’s statements as asserting more than one cause for
Mrs. Nelson’s injury does not exempt his opinion from the requirements of Daubert. In
response to the defendants’ Daubert motion,
plaintiffs noted Dr. Sheena’s experience in following “guidelines for the treatment of septic
shock and the use of vasopressin in the treatment of septic shock as a last resort, . . . [and
these guidelines] were established by four
medical groups, the Society of Critical Care
Medicine, the American College of Chest Physicians, the European Society of Internal Medicine, and the American College of Emergency
Physicians,” of the last of which Dr. Sheena is a
member.
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Vol. 87 — No. 17 — 6/25/2016
¶58 Defendants argue Dr. Sheena does not
routinely work as a hospitalist and has not
treated a sufficient number of patients similar
to Mrs. Nelson in a critical care setting. They
argue his treatment of patients in an emergency room is not a critical care setting for the
purpose of administering vasopressin. They do
not discuss how the clinical experience of a
physician with many years of clinical experience treating similar patients in the emergency
room of small and teaching hospitals would
not provide him or her with knowledge of the
potential cardiac complications of high dose
vasopressin. They do not challenge his experience as an emergency room physician or the
propriety of his dosage standard for administering vasopressin in an emergency room.
They fault him for relying upon some of the
same research as Dr. Russell. They argue a
failure on Dr. Sheena’s part to show a temporal relationship between the high dose of
vasopressin and the cardiac arrest because
vasopressin begins to take effect within a few
minutes of being administered.
¶59 There is more to this latter point on a
temporal relationship than what is expressly
reviewed in defendant’s Daubert motion. Dr.
Russell stated he had a particular concern
about the high “fixed dose” of vasopressin
which remained at that fixed dose and was not
tapered for the duration of infusion, although
the order had been given by Dr. Shepherd to
taper the dose. Dr. Russell also testified concerning a published article discussing “a temporal relationship with cardiac effects” grouped
“in a four-hour window” after administration
of vasopressin and reactions which could occur
“later than that.” At 3:00 p.m., Mrs. Nelson’s
medication was switched to vasopressin, and
at approximately 11:00 p.m. she died. Dr. Russell testified that “for a number of hours” prior
to her death she had poorly perfused extremities, and he opined she suffered from vasoconstriction of end organs with cardiac side effects
leading to her death.
¶60 The admissibility of an opinion by physician expert witness on the issue of external
causation of a patient’s injury is not predicated
on the opinion definitively ruling out every
potential cause other than the one alleged by a
plaintiff. The Reference Manual states as follows.
At some level, most diseases have multiple
host and environmental factors that contribute to their presence. A commonly held
misconception is that the presence of a
Vol. 87 — No. 17 — 6/25/2016
nontoxic or other toxic cause for a condition automatically excludes a role for the
toxin being considered as an external cause
. . . The converse can also be true . . . two
toxic agents have been found to interact in
a synergistic manner so that their combined effects are much greater than even
the sum of their individual effects.
Even if causal factors do not interact
synergistically, several may contribute in
an incremental fashion to a disease and
should not be assumed to be mutually
exclusive. Accordingly, the common statement that “alternative causes of disease
must be ruled out” before causation is
attributed can be more accurately refined
to say that “the role of other causes must be
adequately considered.”
The Federal Judicial Center, Reference Manual
on Scientific Evidence, 476 (2d ed.2000) (material
and citations omitted).
Opinions cited by the Reference Manual in
support of this quotation include federal Circuit Court opinions explaining a physician’s
differential diagnosis is not required to rule out
every possible cause to determine a cause of a
patient’s symptoms, and the existence of possible alternative causes “goes to weight and
not admissibility” of the physician’s opinion.73
Circuit opinions after publication of the Reference Manual have reached a similar conclusion.74 These opinions are consistent with our
opinions such as Robinson v. Oklahoma Nephrology Associates, Inc., supra, and our explanation
that a defendant whose conduct contributed to
cause a plaintiff’s injury is liable for the injury
even if his or her conduct was not sufficient by
itself to cause the injury. Plaintiffs were not
required to provide expert testimony that vasopressin was the sole cause of Mrs. Nelson’s
injury.
¶61 Drs. Russell and Sheena did not testify
the vasopressin dose was the sole cause of Mrs.
Nelson’s cardiac arrest. Dr. Russell testified
that the maintenance of the high dose contributed in a significant manner to the cause of
Mrs. Nelson’s cardiac arrest. He also stated “in
general” a patient may suffer a cardiac arrest
while receiving standard doses of Levophed
and dopamine, “but in the case of Mrs. Nelson
the vasopressin was the cause of the arrest
because the doses of both dopamine and Levophed were decreasing before Mrs. Nelson’s
cardiac arrest and so dopamine and Levophed
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1253
were not the cause of cardiac arrest.” His testimony was that Mrs. Nelson’s chart showed
some post-operative improvement and her
symptoms showing a worsening post-operative condition occurred after vasopressin had
been administered. Drs. Russell and Sheena
testified on the high dose of vasopressin being
the most probable cause or contributory cause
to Mrs. Nelson’s death. We conclude the testimony of Drs. Russell and Sheena are admissible on the issue of specific causation. Their
opinions satisfy the requirements of Daubert
and 12 O.S. § 2702, for both general causation
and specific causation.
Conclusion
¶62 The summary judgment granted to the
defendants, David Shepherd, M.D., and Enid
Medical Associates, Inc., was based upon the
trial court excluding the testimony of Drs. Russell and Sheena. We conclude their testimony
should not have been excluded. We reverse the
orders of the District Court excluding their testimony and granting summary judgment. The
opinion of the Court of Civil Appeals is vacated, and the judgment of the District Court is
reversed and the cause is remanded to the
District Court for further proceedings consistent with the Court’s opinion.
¶63 CONCUR: REIF, C. J., WATT, EDMONDSON, COLBERT, and GURICH, JJ.
¶64 DISSENT: WINCHESTER and TAYLOR,
JJ.
¶65 NOT PARTICIPATING: KAUGER, J.
¶66 DISQUALIFIED: COMBS, V.C.J.
EDMONDSON, J.
1. Reeds v. Walker, 2006 OK 43, ¶ 9, 157 P.3d 100, 106; Spirgis v. Circle
K Stores, Inc., 1987 OK CIV APP 45, 743 P.2d 682, 685 (Approved for
Publication by the Oklahoma Supreme Court).
2. Scott v. Archon Group, L.P., 2008 OK 45, ¶ 8, 191 P.3d 1207, 12091210; Brown v. Patel, 2007 OK 16, ¶ 39, 157 P.3d 117, 129-130. See also
Horton v. Hamilton, 2015 OK 6, ¶ 8, 345 P.3d 357, 360 (summary judgment settles only questions of law).
3. Robinson v. Oklahoma Nephrology Associates, Inc., 2007 OK 2, ¶ 9,
154 P.3d 1250, 1253-1254, quoting Thompson v. Presbyterian Hospital,
1982 OK 87, 652 P.2d 260, 263. See also Smith v. Hines, 2011 OK 51, ¶ 12,
261 P.3d 1129, 1133 (a medical negligence case has three elements, [1] a
duty owed by the defendant to protect the plaintiff from injury, [2] a
failure to perform that duty, and [3] injuries to the plaintiff which are
proximately caused by the defendant’s failure to exercise the duty of
care); Jones v. Mercy Health Center, Inc., 2006 OK 83, ¶ 15, 155 P.3d 9, 14
(A plaintiff cannot recover for negligence unless the negligence was the
proximate cause of the injuries for which the plaintiff seeks compensation), citing Jackson v. Jones, 1995 OK 131, ¶ 8, 907 P.2d 1067, 1072-1073.
4. Johnson v. Mid-South Sports, Inc., 1991 OK 17, 806 P.2d 1107, 1109
(“It is well settled that proximate cause is an essential element of an
action in negligence.”); Dirickson v. Mings, 1996 OK 2, 910 P.2d 1015, 1019
(proximate cause is defined in our cases as “the efficient cause which sets
in motion the chain of circumstances leading to the injury.”).
1254
Proximate cause consists of both “cause in fact” and “legal cause,”
the former contains the threshold “but for” causation issue, while the
latter is a determination whether liability should be imposed as a matter of law where cause in fact has been established. Jones v. Mercy
Health Center, Inc., 2006 OK 83, ¶ 15, 155 P.3d at 14, citing McKellips v.
St. Francis Hosp. Inc., 1987 OK 69, ¶ 9, 741 P.2d 467, 470 and Akin v.
Missouri Pacific R. Co., 1998 OK 102, n. 79, 977 P.2d 1040, 1054. Akin
relies upon W. Page Keeton, et al., Prosser and Keeton on the Law of Torts,
§ 41, at 263 (5th ed. 1984).
5. Iglehart v. Board of County Com’rs of Rogers Cnty, 2002 OK 76, ¶ 15,
60 P.3d 497, 504 (“Generally, the proximate cause of an injury in a negligence case is an issue of fact for the jury.”).
6. Brewer v. Murray, 2012 OK CIV APP 109, ¶ 26, 292 P.3d 41, 52
(Approved for Publication by Oklahoma Supreme Court, 2012 OK 100,
290 P.3d 758) (If defendant established as a matter of law that there was
no causal connection between her negligence and plaintiff’s injuries,
defendant was entitled to judgment.), citing Schovanec v. Archdiocese of
Oklahoma City, 2008 OK 70, ¶ 41, 188 P.3d 158, 173, and Iglehart v. Board
of County Com’rs of Rogers Cnty, 2002 OK 76, ¶ 15, 60 P.3d 497, 504. See
also Minor v. Zidell Trust, 1980 OK 144, 618 P.2d 392 (issue of proximate
cause was dispositive and trial court’s summary judgment for defendants was affirmed on appeal).
7. Christian v. Gray, 2003 OK 10, ¶ 43, 65 P.3d 591, 608 (emphasis
added).
8. Christian v. Gray, 2003 OK 10, ¶ 44, 65 P.3d at 609.
9. Christian v. Gray, 2003 OK 10, at ¶ 44, 65 P.3d at 609.
The U. S. Court of Appeals for the Tenth Circuit reviews de novo
“the question of whether the district court applied the proper legal test
in admitting an expert’s testimony.” Dodge v. Cotter Corp., 328 F.3d
1212, 1223 (10th Cir. 2003). In addition to reviewing de novo the application of the proper standard and actually performing a gatekeeper role
in the first instance, the federal appellate court also determines
whether a federal district court’s actual application of Daubert was an
abuse of discretion: “we will not disturb the district court’s ruling
unless it is ‘arbitrary, capricious, whimsical or manifestly unreasonable’ or when we are convinced that the district court ‘made a clear
error of judgment or exceeded the bounds of permissible choice in the
circumstances.’” Dodge v. Cotter Corp., 328 F.3d 1212 at 1223, quoting
Atlantic Richfield Co. v. Farm Credit Bank of Wichita, 226 F.3d 1138, 116364 (10th Cir.2000).
10. 12 O.S.Supp.2014 § 2702.
11. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. at 590.
12. Holmes, C.L., Walley, K. R., Chittock, D. R., Lehman T., Russell,
J. A., The effects of vasopressin on hemodynamics and renal function
in severe septic shock: A Case Series. Intensive Care Med 27: 1416-1421,
2001.
13. Plaintiffs’ Response to Daubert Motion of David Shepherd,
M.D., to Exclude Plaintiffs’ Proffered Expert Opinion Testimony,
Record in Accelerated Appeal, Vol. 1, Tab 16, Exhibit 3, numbered
notes omitted.
14. This statement in the article cited three publications in support:
a 2001 article from Chest on the physiology of vasopressin relevant to the
management of septic shock, a 1999 article from J Trauma on low-dose
vasopressin in the treatment of vasodilatory septic shock, and a 2001
article from Intensive Care Med, The effects of vasopressin on hemodynamics and renal function in severe septic shock: A Case Series.
15. Holmes, C.L., Walley K.R., Chittock D. R., Lehman T., Russell,
J. A., The effects of vasopressin on hemodynamics and renal function
in severe septic shock: A Case Series. Intensive Care Med 27: 1416-1421,
2001.
16. Appellate Record Vol. 1, Tab 15, the document has eleven
Exhibits (“A” - “K”) and articles, but the article in Exhibit “H” is a
duplicate photocopy of the Exhibit “C” article.
17. Appellate Record Vol. 1, Tab 15, at Exhibit “D”, Vasopressin
versus Norepinephrine Infusion in Patients with Septic Shock, James
A. Russell, Keith R. Walley, et al., N Engl J Med 2008; 358:877-87;
Exhibit “E”, The effects of Vasopressin on hemodynamics and renal
function in severe septic shock: a case series, Cheryl L. Holmes, Keith
R. Walley, Dean R. Chittock, Tara Lehman, James A. Russell, Intensive
Care Med 2001; 27:1416-1421; Exhibit “G”, Management of Sepsis,
James A. Russell, N Engl J Med 2006 355:1699.
18. Appellate Record Vol. 1, Tab 15, at Exhibit “C”, Vasopressin in
Septic Shock, (Comments and Reply) N Engl J Med 2008; 358:2736-2738.
This publication includes a response by Dr. Russell and a co-author
explaining why a certain vasopressin dosage was used in a study:
“Our choice of the vasopressin dose of 0.03 IU per minute in VASST
was based in part on finding an association between an increased risk
of cardiac arrest and vasopressin doses greater than 0.04 IU per minute.” Id. N Engl J Med 2008; 358:2737 and citing Intensive Care Med 2001;
27:1416-21.
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Vol. 87 — No. 17 — 6/25/2016
19. Tsuneyoshi and Yamada’s study involved a controlled infusion
at 0.04 units/minute and supports Dr. Russell’s conclusion on a beneficial dosage. Appellate Record Vol. 1, Tab 15 Exhibit “K”, Hemodynamic and metabolic effects of low-dose vasopressin infusions in
vasodilatory septic shock, Isao Tsuneyoshi, Haruhiko Yamada, et al.,
Crit Care Med 2001, Vol. 29 No. 3, 487-493.
20. Appellate Record Vol. 1, Tab 15, at Exhibit “B”, Vasopressor and
inotropic support in septic shock: An evidence based review, Richard
Beale, Steven M. Hollenberg, et al., Crit Care Med 32, No. 11 (Suppl.)
2004, S455-S465, at S462.
21. Appellate Record Vol. 1, Tab 15, at Exhibit “F”, The Physiology
and Clinical Applications of Vasopressin in Critical Illness, J.C. Russell
and P. J. Glover, Critical Care and Resuscitation 2002: 4:181-191, at 185,
citing Schmid PG, Abboud FM, Wendling MG, et al., Regional vascular
effects of vasopressin and vasopressin antagonists. Am J Physiol
1974:227:998-1004.
22. Appellate Record Vol. 1, Tab 15, at Exhibit “I”, High-dose vasopressin is not superior to norepinephrine in septic shock, Stefan Klinzing, Mark Simon, et al., Crit Care Med 2003, Vol. 31 No. 11, 2646-2650, at
2648.
23. Id. Klinzing and Simon, et al., Crit Care Med 2003, Vol. 31, No.
11, at 2648-2649.
24. Appellate Record Vol. 1, Tab 15, at Exhibit “J”, Comparing two
different arginine vasopressin doses in advanced vasodilatory shock: a
randomized, controlled, open-label trial, Christian Torgersen, Martin
W. Dünser, et al., Intensive Care Med (2010) 36: 57-65.
25. Id. Vol. 1, Tab 15, at Exhibit “J”, Comparing two different arginine vasopressin doses in advanced vasodilatory shock: a randomized,
controlled, open-label trial, Christian Torgersen, Martin W. Dünser, et
al., Intensive Care Med (2010) 36: 57-65, at 63 (discussing the fact that the
patients allocated to the 0.033 IU/min group suffered from more
chronic heart diseases).
26. Appendix of Literature to Daubert Motion of David Shepherd,
M.D., to Exclude Plaintiffs’ Proffered Expert Opinion Testimony,
Appellate Record, Vol. 1, Tab 15, Exhibit “A”, Arginine Vasopressin for
the Treatment of Septic Shock in Adults, Seth R. Bauer, Pharm. D. and
Simon W. Lam, Pharm. D., Pharmacotherapy Vol. 30, No. 10 (2010) 10571071, at 1058.
27. Id. Vol. 1, Tab 15, Exhibit “A”, Arginine Vasopressin for the
Treatment of Septic Shock in Adults, Bauer & Lam, at 1062, 1064.
28. Id. Vol. 1, Tab 15, Exhibit “A”, Arginine Vasopressin for the
Treatment of Septic Shock in Adults, Bauer & Lam, at 1064.
29. Plaintiffs’ Response to Daubert Motion of David Shepherd,
M.D., to Exclude Plaintiffs’ Proffered Expert Opinion Testimony,
Record in Accelerated Appeal, Vol. 1, Tab 16, Exhibit 1, James A. Russell, Review of Daubert Motion of David Shepherd, at pg.8.
30. In addition to Bauer and Lam, see for example, Defendants’
Appendix of Literature, etc, appellate record, Tab 15 Exhibit “K”,
Hemodynamic and metabolic effects of low-dose vasopressin infusions in vasodilatory septic shock, Isao Tsuneyoshi, Haruhiko Yamada,
et al., Crit Care Med 2001, Vol. 29 No. 3, 487-493, where the method was
a “prospective case-controlled study” where a continuous intravenous
infusion at 0.04 units/min for 16 hours was used, and concluding
“low-dose vasopressin infusions may be useful in treating hypotension” in certain patients.
31. Christian v. Gray, at ¶ 21, 65 P.3d at 601.
32. The Federal Judicial Center, Reference Manual on Scientific Evidence, 469 (2d ed.2000).
33. The Federal Judicial Center, Reference Manual on Scientific Evidence, 470 (2d ed.2000).
34. Hollander v. Sandoz Pharmaceuticals Corp., 289 F.3d 1193, 1205
(10th Cir.2002) citing Daubert v. Merrell Dow Pharmaceuticals, Inc., 509
U.S. at 595.
35. Hollander v. Sandoz Pharmaceuticals Corp., 289 F.3d 1193, 1205
(10thCir. 2002) quoting General Electric v. Joiner, 522 U.S. 136, 146, 118
S.Ct. 512, 139 L.Ed.2d 508 (1997).
36. Bitler v. A. O. Smith Corp., 400 F.3d 1227, 1233 (10th Cir. 2004)
quoting Mitchell v. Gencorp Inc., 165 F.3d 778, 781 (10th Cir.1999).
See also 28 U.S.C.A., Federal Rules of Evidence, Rule 702 (eff. Dec.
1, 2011):
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or
otherwise if:
(a) the expert’s scientific, technical, or other specialized
knowledge will help the trier of fact to understand the evidence
or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and
methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.
Vol. 87 — No. 17 — 6/25/2016
37. Hollander v. Sandoz Pharmaceuticals Corp., 289 F.3d 1193 (10th
Cir.2002).
38. Hollander, 289 F.3d at 1207.
39. Hollander, 289 F.3d at 1197, 1209-1211 (A few years after FDA
approval and 500,000 patients had taken the drug, the FDA revised the
drug’s labeling to reflect reports of postpartum hypertension, seizures,
and cerebrovascular accidents because the FDA had received seven
reports of hypertension alone, seven reports of seizures, and three
cases of cerebrovascular accidents (including one fatality); and”the
modest number of case reports associating the drug with stroke or
even postpartum hypertension is not what would be expected if there
was a significant increased risk.”).
40. The Federal Judicial Center, Reference Manual on Scientific Evidence, 452 (2d ed.2000) (“To determine general causation, the expert
must review the pertinent literature, as familiarity with this literature
is key to expert opinion.”); Christian v. Gray, 2003 OK 10, ¶ 22, 65 P.3d
at 602 (opinion and argument on a lack of studies on the specific
alleged causal agent failed to provide for the possibility that the agent
had certain physical properties that are shared with other chemical
substances that have been subjected to studies).
41. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 593,113 S.Ct.
2786, 125 L.Ed.2d 469 (1993).
42. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. at 593-594.
43. See, e.g., The Federal Judicial Center, Reference Manual on Scientific
Evidence, 723 (3d ed.2011) (explaining a “hierarchy of medical evidence”
and stating “A fundamental principle of evidence-based medicine . . . is
that the strength of medical evidence supporting a therapy or strategy is
hierarchical.”).
44. Michael D. Green and Joseph Sanders, Admissibility Versus Sufficiency: Controlling the Quality of Expert Witness Testimony, 50 Wake
Forest L. Rev. 1057, 1069 (2015).
45. The Federal Judicial Center, Reference Manual on Scientific Evidence, 475 (2d ed.2000). The Reference Manual also notes “Courts have
given varying treatment to case reports.” Id. 475, n. 132.
46. The Federal Judicial Center, Reference Manual on Scientific Evidence, 345-346 (2d ed.2000).
47. The Federal Judicial Center, Reference Manual on Scientific Evidence, 714 (3d ed.2011).
48. Id. Reference Manual on Scientific Evidence, 714 (3d ed.2011).
49. After General Electric v. Joiner, 522 U.S. 136, 146 (1997), it was
clear a court a court need not accept testimony with “too great an
analytical gap between the data and the opinion proffered.” Christian
v. Gray, 2003 OK 10, ¶ 36, 65 P.3d 591, 607.
50. Feliciano-Hill v. Principi, 439 F.3d 18, 25 (1st Cir. 2006).
51. Feliciano-Hill v. Principi, 439 F.3d 18, 25 (1st Cir. 2006), quoting
Holbrook v. Lykes Bros. S.S. Co., 80 F.3d 777, 782 (3d Cir.1996).
52. Christian v. Gray, 2003 OK 10, n. 20, 65 P.3d 591, 607 (we noted
“it is common” for disagreement among medical experts on diagnosis and causation when arriving at their conclusions in a particular
case, and questions of conflicting evidence “must be left for the
jury’s determination.”).
53. A witness’s qualifications must not be conflated with the reliability of the witness’s theory or technique, although it may be considered as a Daubert factor. Harvey Brown & Melissa Davis, Eight Gates for
Expert Witnesses: Fifteen Years Later, 52 Hous. L. Rev. 1, 153 n. 861 (2014).
54. State v. Farner, 66 S.W.3d 188, 207 (Tenn. 2001).
55. In Christian v. Gray, we noted a published study is not the only
form of evidence to show general causation. 2003 OK 10, ¶ 26, 65 P.3d
at 604 (“Not all courts have agreed that Daubert requires the same type
of methodology for general causation in all circumstances.”); Knight v.
Kirby Inland Marine Inc., 482 F.3d 347, 351 (5th Cir.2007) (“we do not
suggest that an expert must back his or her opinion with published
studies that unequivocally support his or her conclusions.”) citing Bonner v. ISP Techs., Inc., 259 F.3d 924, 929 (8th Cir.2001) (observing that
“there is no requirement that a medical expert must always cite published studies on general causation in order to reliably conclude that a
particular object caused a particular illness”). See also Heller v. Shaw
Indus., Inc., 167 F.3d 146, 154 (3d Cir.1999) (concluding that a physician
is not required “to rely on definitive published studies before concluding that exposure to a particular object or chemical was the most likely
cause of a plaintiff’s illness.”).
56. Dr. Sheena’s clinical experience was challenged by defendants
as insufficient to create an opinion on vasopressin. Dr. Sheena’s experience is discussed herein in the context of specific causation.
57. The Federal Judicial Center, Reference Manual on Scientific Evidence, 463 (2d ed.2000) (“To arrive at an underlying internal cause, the
physician must process the multiple symptoms and signs from a working diagnosis into a single diagnosis or disease, such as multiple vascular strokes as an explanation for dementia).
The Federal Judicial Center, Reference Manual on Scientific Evidence,
468 (2d ed.2000), (Evaluation of External Causation: “For the physician,
The Oklahoma Bar Journal
1255
both causal and probabilistic reasoning are the basis for establishing
external causation, which is the relationship between environmental
factors [work, chemical exposures, lifestyle, medications] and illness,
as well as making the more common analysis of internal causation....”).
58. Christian v. Gray, at ¶ 21, 65 P.3d at 601 (“Causation is now often
divided into general causation and specific causation in some controversies involving allegations of injury resulting from a person’s exposure to a harmful substance . . . specific causation is whether that substance caused the particular individual’s injury.”).
59. Black’s Law Dictionary, 961 (4th ed. 1951) (ipse dixit, “He himself
said it; a bare assertion resting on the authority of an individual.”).
60. The Federal Judicial Center, Reference Manual on Scientific Evidence, 470, n. 112 (2d ed.2000).
61. Bitler v. A. O. Smith Corp., 400 F.3d 1227, 1236 (10th Cir. 2004),
citing Zuchowicz v. United States, 140 F.3d 381, 387 (2d Cir. 1998); Westberry v. Gislaved Gummi AB, 178 F.3d 257, 262 (4th Cir. 1999); Clausen v.
M/V New Carissa, 339 F.3d 1049, 1058-59 (9th Cir. 2003); and Goebel v.
Denver and Rio Grande W. R.R. Co., 346 F.3d 987, 999 (10th Cir. 2003).
62. Bitler v. A. O. Smith Corp., 400 F.3d at 1236.
63. Glastetter v. Novartis Pharmaceuticals Corp., 252 F.3d 986, 989 (8th
Cir. 2001).
64. See, e.g., Mario F. Triola, Elementary Statistics, 16, 496-517 (9th ed.
2005) (stating the truism that “correlation does not imply causation,”
and that correlation exists between two variables when one of them is
related to the other in some way, and what “correlation” means in
statistics).
65. In re Death of Gray, 2004 OK 63, ¶ 10, n. 13, 100 P.3d 691, 700-701
(post hoc ergo propter hoc, after this, therefore because of this, is improper
reasoning, by itself, to show causation). Accord Guinn v. AstraZeneca
Pharm. LP, 602 F.3d 1245, 1254 (11th Cir.2010) (“This Circuit has held
that the temporal connection between exposure to chemicals and an
onset of symptoms, standing alone, is entitled to little weight in determining causation.”); Jonathan M. Dunitz & Nancy J. Fannon, Daubert
and the Financial Damages Expert, 26 Me. B.J. 62, 66 (“post hoc, ergo propter hoc logic — after this, therefore because of this — is well recognized
as a logical fallacy and a departure from the scientific requirements
that Daubert was meant to address”); Irving M. Copi, Introduction to
Logic, 68-69 (3d ed. 1968) (one of the alternative Latin names given to
the fallacy of false cause is post hoc ergo propter hoc, “the inference that
one event is cause of another from the bare fact that the first occurs
earlier than the second.”).
66. Christian v. Gray, at ¶ 27, 65 P.3d at 604 (an issue often discussed
as part of a specific causation analysis involving external causation is
the temporal, or time-based, relationship between the exposure and a
plaintiff’s injury); Goebel v. Denver & Rio Grande W. R.R. Co., 346 F.3d
987, 999 (10th Cir.2003) (an expert witness may rely on a temporal
relationship as one factor when showing causation); Bonner v. ISP
Techs., Inc., 259 F.3d 924, 931 (8th Cir.2001) (“We have held, ‘Under
some circumstances, a strong temporal connection is powerful evidence of causation.’”).
67. The Federal Judicial Center, Reference Manual on Scientific Evidence, 467-468 (2d ed.2000).
68. In re Paoli R.R. Yard Litig., 35 F.3d 717, 760 (3d Cir. 1994) (trial
court abused its discretion in excluding medical opinions under Federal of Evidence Rule 702 unless either (1) the doctors failed to use
standard diagnostic techniques to rule out alternative causes and the
doctors failed to offer a good explanation as to why their conclusions
remained reliable, or (2) the defendants pointed to some likely cause of
the plaintiff’s illness other than the defendants’ actions and the doctors
offered no reasonable explanation as to why they still believed that the
defendants’ actions were a substantial factor in bringing about that illness.). See also Claar v. Burlington N.R.R., 29 F.3d 499 (9th Cir. 1994) (testimony excluded where the expert failed to consider other obvious causes
for the plaintiff’s condition) and compare Ambrosini v. Labarraque, 32
U.S.App.D.C. 19, 101 F.3d 129, 140 (D.C. Cir. 1996) (the possibility of
some uneliminated causes goes to the accuracy of the conclusion and
presents a question of weight, so long as the most obvious causes have
been considered and reasonably ruled out by the expert).
69. Robinson v. Oklahoma Nephrology Associates, Inc., 2007 OK 2, ¶ 9,
154 P.3d 1250, 1254, citing Johnson v. Hillcrest Health Ctr., Inc., 2003 OK
16, ¶ 18 n. 25, 70 P.3d 811, 819 n. 25.
70. See, e.g., Thomas v. E-Z Mart Stores, Inc., 2004 OK 82, ¶ 21, 102
P.3d 133, 139 (Court distinguished joint tortfeasors causing injury by
concerted actions pursuant to a common purpose or design, and concurrent tortfeasors causing a single and indivisible injury by independent actions).
71. See, e.g., H. L. A. Hart & Tony Honoré, Causation in the Law,
205-253 (2d.ed 1985) (discussing contributory, additional, and alternative causes, as well as joint and concurrent torts, and contributory
negligence).
1256
72. Christian v. Gray, at ¶ 28, 65 P.3d at 604-605, quoting Magistrini v.
One Hour Martinizing Dry Cleaning, 180 F.Supp.2d 584, 609 (D.N.J.2002).
73. See, e.g., Curtis v. M & S Petroleum, Inc., 174 F.3d 661, 670-672
(5th Cir.1999) (appellate court reversed trial court’s conclusion that a
differential diagnosis required eliminating other possible causes of
symptoms); Heller v. Shaw Indus., Inc., 167 F.3d 146, 153-157 (3d
Cir.1999) (existence of possible alternative causes goes to weight and
not admissibility).
74. See e.g., Schultz v. Akzo Nobel Paints, LLC, 721 F.3d 426, 434 (7th
Cir. 2013) (the Committee Notes to Federal Rule of Evidence, Rule 702,
suggest that while a reliable expert should consider alternative causes,
they do not require an expert to rule out every alternative cause); Best
v. Lowe’s Home Ctrs., Inc., 563 F.3d 171, 181-182 (6th Cir.2009) (a physician’s opinion as a competent, intellectually rigorous treating physician
in identifying the most likely cause of a patient’s injury does not affect the
“threshold admissibility” of the opinion, although weaknesses in the
physician’s methodology “will affect the weight that his opinion is given
at trial.”) citing Kudabeck v. Kroger Co., 338 F.3d 856, 861-62 (8th Cir.2003)
(“attacks regarding the completeness of [a doctor’s] methodology go to
the weight and not the admissibility of his testimony.”).
Appellate Practice
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Ethics in appeals. (1/1)
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How to designate a civil appellate
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BAR NEWS
OBA Member Resignations
The following members have resigned as members of the association and notice is hereby given
of such resignation:
James David Bergstrom
OBA No. 19637
5188 White Cliff Drive
Memphis, TN 38157
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OBA No. 17885
1217 Bert Lane
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OBA No. 3823
500 Manor Hill Drive
Norman, OK 73072
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P.O. Box 1869
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11092 Bob Lane
Sandy, UT 84092
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OBA No. 30923
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Oklahoma City, OK 73120-6006
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The Willis Law Group PLLC
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503 Country Lane
Coppell, TX 75019
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1314 S. Denver Ave., Apt. 6
Tulsa, OK 74119
OBA Member Reinstatements
The following OBA members suspended for nonpayment of dues or noncompliance with the
Rules for Mandatory Continuing Legal Education have complied with the requirements for reinstatement, and notice is hereby given of such reinstatement:
Alexander Louis Bednar
OBA No. 19635
3030 N.W. Expressway,
Suite 200
Oklahoma City, OK 73112
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OBA No. 17080
3560 Dallas Parkway
Frisco, TX 75034
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OBA No. 12129
2141 N. Carlton Ave.
Liberal, KS 67901
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OBA No. 19351
3209 Rolling Road
Chevy Chase, MD 20815
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OBA No. 13786
3301 N.W. 167th Circle
Edmond, OK 73012
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2320 Belleview Drive
Oklahoma City, OK 73112
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Oklahoma City, OK 73122
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Vol. 87 — No. 17 — 6/25/2016
CALENDAR OF EVENTS
June
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OBA Legal Intern Committee meeting;
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teleconference; Contact H. Terrell Monks
405-733-8686
July
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13
15
OBA Alternative Dispute Resolution Section
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OBA Closed - Independence Day
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Oklahoma City with teleconference; Contact
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18
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405-366-5466 or Hugh E. Hood 918-747-4357
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Vol. 87 — No. 17 — 6/25/2016
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OBA Appellate Practice Section meeting;
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videoconference; Contact Mark Koss 405-720-6868
OBA Women in Law Committee meeting;
4 p.m.; Oklahoma Bar Center, Oklahoma City with
teleconference; Contact Ann E. Keele 918-592-1144
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OBA Government and Administrative Law
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The Oklahoma Bar Journal
1259
HANDBOOK OF SECTION 1983
LITIGATION, 2016 EDITION
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to waste time running down the wrong research path, turn to the Handbook of
Section 1983 Litigation, 2016 Edition. Now in its Sixteenth Edition, this essential
guide is designed as the practitioner’s desk book. It provides quick and concise
answers to issues that frequently arise in Section 1983 cases, from police
misconduct to affirmative actions to gender and race discrimination. It is
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9781454852238, Paperback, 1,380pp, $485
Call 1-800-638-8437 and mention Priority Code AC37
or visit our web site at www.wklawbusiness.com
1260
The Oklahoma Bar Journal
Vol. 87 — No. 17 — 6/25/2016
Court of Criminal Appeals Opinions
2016 OK CR 11
IN RE: ADOPTION OF THE 2016
REVISIONS TO THE OKLAHOMA
UNIFORM JURY INSTRUCTIONS CRIMINAL (SECOND EDITION)
CASE NO. CCAD-2016-1. June 1, 2016
ORDER ADOPTING AMENDMENTS TO
OKLAHOMA UNIFORM JURY
INSTRUCTIONS - CRIMINAL
(SECOND EDITION)
¶1 On March 11, 2016, The Oklahoma Court
of Criminal Appeals Committee for Preparation of Uniform Jury Instructions submitted its
report and recommendations to the Court for
adoption of amendments to Oklahoma Uniform Jury Instructions-Criminal (Second Edition). The Court has reviewed the report by the
committee and recommendations for the adoption of the 2016 proposed revisions to the Uniform Jury Instructions. Pursuant to 12 O.S.
2011, § 577.2, the Court accepts that report and
finds the revisions should be ordered adopted.
¶2 IT IS FURTHER ORDERED ADJUDGED
AND DECREED that the report of The Oklahoma Court of Criminal Appeals Committee
for Preparation of Uniform Jury Instructions
shall be accepted, the revisions shall be available for access via the internet from this Court’s
web site at www.okcca.net on the date of this
order and provided to West Publishing Company for publication. The Administrative Office of the Courts is requested to duplicate and
provide copies of the revisions to the judges of
the District Courts and the District Courts of
the State of Oklahoma are directed to implement the utilization of these revisions effective
on the date of this order.
¶3 IT IS FURTHER ORDERED ADJUDGED
AND DECREED the amendments to existing
OUJI-CR 2d instructions, and the adoption of
new instructions, as set out in the following
designated instructions and attached to this
order, are adopted to wit:
4-15; 4-16; 4-39; 4-124; 4-127; 4-128; 4-130;
8-32; 8-34; 9-19; 9-43A;
¶4 The Court also accepts and authorizes the
updated committee comments and notes on
use to be published, together with the above
Vol. 87 — No. 17 — 6/25/2016
styled revisions and each amended page in the
revisions to be noted at the bottom as follows
“(2016 Supp.)”.
¶5 IT IS THE FURTHER ORDER OF THIS
COURT that the members of The Oklahoma
Court of Criminal Appeals Committee for
Preparation of Uniform Criminal Jury Instructions be commended for their ongoing efforts
to provide up-to-date Uniform Jury Instructions to the bench and the bar of the State of
Oklahoma.
¶6 IT IS SO ORDERED.
¶7 WITNESS OUR HANDS AND THE
SEAL OF THIS COURT this 1st day of June,
2016.
CLANCY SMITH,
Presiding Judge
GARY L. LUMPKIN,
Vice Presiding Judge
ARLENE JOHNSON, Judge
DAVID B. LEWIS, Judge
ROBERT L. HUDSON, Judge
ATTEST:
Michael S. Richie
(Clerk)
2016 OK CR 12
MARVEL EDWARD LEWIS, Petitioner, vs.
THE CITY OF OKLAHOMA CITY,
Respondent.
No. C-2015-1117. May 31, 2016
OPINION DENYING CERTIORARI
SMITH, PRESIDING JUDGE:
¶1 On October 21, 2015, Petitioner entered a
plea of nolo contendere in Oklahoma City Municipal Court, Case No. 14-354729X, to Speeding (1-10 m.p.h. over posted limit), in violation
of Oklahoma City Ordinances §§ 1-6, 32-169,
and 32-175. Before entering his plea, Petitioner
made it clear to the municipal court and to
Respondent (“the City”) that he did not contest
his guilt, but that he wished to challenge the
City’s authority to prescribe any penalty for
speeding in excess of the penalty prescribed by
state law (which, in this case, would be $10.00),
The Oklahoma Bar Journal
1261
and the municipal court’s authority to impose
same. The parties briefed the issue for the
municipal court. On December 2, 2015, the
Honorable Donald Kiffin, Municipal Judge,
rejected Petitioner’s argument and fined him
$84.00. Petitioner timely filed a motion to withdraw his plea, reiterating his sole claim that the
sentence imposed was not authorized by law.
The motion was denied on December 15, 2015,
and Petitioner timely gave notice of intent to
appeal. Because Petitioner timely raised his
claim below, before and after entry of his plea,
and because the claim involves the municipal
court’s legal authority to impose the sentence it
did, the claim is cognizable in this certiorari
appeal. Maxwell v. State, 2006 OK CR 33, ¶¶ 6-7,
141 P.3d 564, 567; Allen v. City of Oklahoma City,
1998 OK CR 42, ¶ 4, 965 P.2d 387, 388; Gonseth
v. State, 1994 OK CR 9, ¶ 14, 871 P.2d 51, 55.
¶2 After thorough consideration of the arguments made by both parties in their briefs, we
reject Petitioner’s claim and affirm the Municipal Court’s order denying the motion to withdraw plea. Resolution of this case requires
interpretation of several different statutes. The
goal of statutory construction is to ascertain, as
closely as possible, the intention of the Legislature. State v. Haworth, 2012 OK CR 12, ¶ 12, 283
P.3d 311, 315. We look to each part of the statute, to other laws on the same or related subjects, to the statute’s apparent purpose, and to
the natural or absurd consequences of any
particular interpretation. Lozoya v. State, 1996
OK CR 55, ¶ 20, 932 P.2d 22, 29. We may also
consider the evolution of the statutory language over time. “[I]t is well to consider the
previous law and the changes wrought therein
by the existing law as indicative of the legislative intent expressed in the present law.” In re
Blain, 1946 OK 238, ¶ 15, 172 P.2d 795, 799. We
presume the Legislature “has not created an
absurdity or done a vain or useless act.” State v.
District Court of Okla. County, 2007 OK CR 3, ¶
11, 154 P.3d 84, 86.
¶3 A municipality can exercise only such
authority as might be conferred upon it by constitutional mandate or legislative grant. Elias v.
City of Tulsa, 1961 OK CR 59, ¶ 4, 364 P.2d 678,
680; Okl.Const. art. VII, § 1.1 Petitioner’s sole
claim is that the City’s penalty scheme for
Speeding conflicts with State law, because it permits fines in excess of those specified in Oklahoma’s Vehicle Code. See 47 O.S.Supp.2015, §
11-801(G). Petitioner points to language found in
both the Vehicle Code and the Municipal Code
1262
barring cities from enacting ordinances that conflict with State law. 47 O.S.Supp.2015, § 15-101;
11 O.S.2011, § 22-117(A).2
¶4 We addressed a similar argument in Hall
v. State, 2009 OK CR 28, 221 P.3d 130. In Hall,
the defendant claimed that an Oklahoma City
traffic ordinance regarding vehicle turns impermissibly conflicted with a state law covering the same subject. State law only required a
motorist to signal a vehicle turn if other traffic
might be affected by the action. The city ordinance went further, requiring motorists in all
circumstances to signal continuously for at
least 100 feet before turning. We rejected the
defendant’s argument that the ordinance violated 11 O.S. § 22-117’s admonition that city
ordinances not be “inconsistent with” state
law. We held that the provisions were consistent with each other because both promoted
public safety, and safety was “even better
served” by the more stringent requirements of
the ordinance:
Oklahoma City’s ordinance would be
inconsistent with or contradict Oklahoma
state law if it permitted drivers to never
signal. That would defeat a minimum level
of public safety the state had set. Here
however, the ordinance enhances public
safety, while still satisfying the state mandate. Because cities have been delegated
part of the State’s police power in regard
to traffic laws, it cannot be said that any
time a city enacts a law that requires more
than what state law requires that it has
contradicted or acted inconsistently with
the state law. If that were true, then a city’s
power over traffic in its jurisdiction would
be a farce, a delegation without any real
authority.
Hall, 2009 OK CR 28, ¶ 5, 221 P.3d at 131. Our
reasoning in Hall echoed our holding, almost a
century ago, in Ex parte Johnson, 20 Okl.Cr. 66,
201 P. 533 (1921), where we stated in Syllabus 4
of the opinion (with emphasis added):
Where the Legislature has made or may by
general law make a specific police regulation, that fact of itself will not prevent the
lawmaking power of a city from making
further regulations on the same subject, not
inconsistent with general laws. A municipality may move in the same direction as the
Legislature, but not contrary to nor in an opposite direction.
The Oklahoma Bar Journal
Vol. 87 — No. 17 — 6/25/2016
¶5 Following Johnson and Hall, we might
conclude that if the City imposes stricter penalties for traffic violations than state law prescribes, it is moving “in the same direction”
with regard to public safety, and that the public
is even better served by the change. However,
in this case, the relevant statutes themselves
offer compelling textual support for the City’s
action. Any perceived “conflict” with state law
has been expressly permitted by the Legislature for cities that have a municipal criminal
court of record in place.
¶6 Our Legislature has provided comprehensive rules on the formation and operation of
cities though the Municipal Code. 11 O.S. §
1-101 et seq. Under this Code, cities of a certain
population can establish “criminal courts of
record,” and the distinction between cities with
criminal courts of record, and those without,
affects the powers of each.3 Generally speaking, cities with criminal courts of record have
greater power to punish infractions. Compare 11
O.S.2011, § 14-111 (placing limits on municipal
ordinances in general) with 11 O.S.2011, § 28102 (relating to penalties that may be imposed
by a municipal criminal court of record). Cities
without a criminal court of record “may not
impose a penalty, including fine or deferral fee
in lieu of a fine and costs, which is greater than
that established by statute for the same
offense.” 11 O.S.2011, § 14-111(C). No such
limitation is imposed upon cities that have
established criminal courts of record. In fact,
as the City points out in its brief, § 28-102(C)
of the Municipal Code, specifically applicable
to municipal courts of record, once contained
limiting language similar to that found in §
14-111(C) — but that language was removed
by the Legislature in 1998.4 Laws 1998, Ch.
234, § 2 (eff. Nov. 1, 1998).
¶7 When construing a statute that has been
amended, we may reasonably infer that the
alteration was intended either to effect a change
in the existing law, or to clarify an interpretation that may have been in question. American
Airlines v. Hickman, 2007 OK 59, ¶ 11, 164 P.3d
146, 149. When the Legislature removed limiting language affecting cities with criminal
courts of record, but left the same limitation in
effect for other cities, we presume it did so for
a reason.5
¶8 Section 28-102(C) of the Municipal Code
now provides, in relevant part:
Vol. 87 — No. 17 — 6/25/2016
[T]he maximum punishment that may be
levied in any municipal criminal court of
record for violations of municipal traffic
ordinances not including ordinances relating to driving a motor vehicle under the
influence of alcohol or drugs is a fine not
exceeding One Thousand Two Hundred
Fifty Dollars ($1,250.00) and costs, an
imprisonment not to exceed ninety (90)
days, or both such fine and imprisonment.
For Petitioner’s offense, the maximum punishment allowed by the City’s ordinances is
$500.00 — substantially lower than the penalty
allowed by state law. And the $84.00 fine actually imposed by the Municipal Court is, obviously, substantially lower than that.
¶9 Petitioner makes only passing reference to
the textual differences between laws affecting
cities with criminal courts of record, and those
without. In fact, he goes so far as to claim the
distinction is not relevant to whether a city’s
ordinances conflict with state law.6 That claim
is simply at odds with the structure and substance of the Municipal Code in general, and
with the textual differences between § 14-111
and § 28-102 in particular. The existing text of
these provisions, coupled with the changes to §
28-102 over time, convince this Court that the
Legislature has intentionally authorized cities
with municipal criminal courts of record to
impose penalties for traffic offenses within the
limits specified in the Municipal Code, regardless of whether they may exceed the penalties
established in 47 O.S. § 11-801. Hickman, 2007
OK 59, ¶ 11, 164 P.3d at 149; Blain, 1946 OK 238,
¶ 15, 172 P.2d at 799. See also Vantine v. City of
Tulsa, 1973 OK CR 442, ¶¶ 6, 13, 518 P.2d 316,
318, 319.7
DECISION
¶10 The City of Oklahoma City Municipal
Court’s decision to deny Petitioner’s Motion to
Withdraw Plea of Nolo Contendere is AFFIRMED, and certiorari is DENIED. Pursuant
to Rule 3.15, Rules of the Oklahoma Court of
Criminal Appeals, Title 22, Ch.18, App. (2016),
the MANDATE is ORDERED issued upon the
delivery and filing of this decision.
AN APPEAL FROM THE CITY OF
OKLAHOMA CITY MUNICIPAL COURT
THE HONORABLE DONALD O. KIFFIN,
MUNICIPAL JUDGE
ATTORNEYS AT TRIAL
The Oklahoma Bar Journal
1263
Jeffrey J. Box, Jeffrey J. Box, P.C., 2621 South
Western Avenue, Oklahoma City, OK 73109,
Counsel for Defendant
Steven R. Huddleston, Assistant Municipal
Counselor, 700 Couch Drive, Oklahoma City,
OK 73102, Counsel for City of Oklahoma City
ATTORNEYS ON APPEAL
Jeffrey J. Box, Jeffrey J. Box, P.C., 2621 South
Western Avenue, Oklahoma City, OK 73109,
Counsel for Petitioner
Kenneth D. Jordan, Municipal Counselor,
Cindy L. Richard, Deputy Municipal Counselor, Steven R. Huddleston, Assistant Municipal
Counselor, 700 Couch Drive, Oklahoma City,
OK 73102, Counsel for Respondent
OPINION BY: SMITH, P.J.
LUMPKIN, V.P.J.: CONCUR
JOHNSON, J.: CONCUR
LEWIS, J.: CONCUR
HUDSON, J.: RECUSE
1. “Municipal Courts in cities or incorporated towns shall continue
in effect and shall be subject to creation, abolition or alteration by the
Legislature by general laws, but shall be limited in jurisdiction to
criminal and traffic proceedings arising out of infractions of the provisions of ordinances of cities and towns or of duly adopted regulations
authorized by such ordinances.”
2. Section 15-101 of the Vehicle Code provides:
The provisions of Chapters 10, 11, 12, 13 and 14 of this act shall
be applicable and uniform throughout this state and in all political subdivisions and municipalities therein and no local authority shall enact or enforce any ordinance, rule or regulation in
conflict with the provisions of such chapters unless expressly
authorized herein. Local authorities may, however, adopt additional traffic regulations which are not in conflict with the provisions of such chapters.
Section 22-117(A) of the Municipal Code provides:
The municipal governing body may establish ordinances and
regulations governing the operation of motor vehicles and traffic
upon the roads and streets within the municipality in the manner
provided by, and not inconsistent with, state law. An ordinance
or regulation shall be consistent with state law if it is reasonably
related to traffic safety or control or flow of traffic and does not
contradict a specific provision of state law. The governing body
may also regulate and prevent racing and fast driving, and all
games, practices or amusements likely to result in damage to any
person or property, in the streets, highways, alleys, bridges,
sidewalks or other places in the municipality, and riding or driving over or upon the sidewalks of the municipality.
See also § 14-101 of the Municipal Code, which provides:
The municipal governing body may enact ordinances, rules and
regulations not inconsistent with the Constitution and laws of
Oklahoma for any purpose mentioned in Title 11 of the Oklahoma Statutes or for carrying out their municipal functions. Municipal ordinances, rules or regulations may be repealed, altered
or amended as the governing body ordains.
3. See generally 11 O.S. §§ 27-101 to 27-132 (relating to all municipal
courts generally) and 11 O.S. §§ 28-101 to 28-128 (relating to municipal
criminal courts of record only).
4. Before deletion, the last sentence of § 28-102(C) read: “A municipal ordinance may not impose a penalty greater than that established
by state statute for the same offense.” 11 O.S.Supp.1997, § 28-102(C).
5. Petitioner’s reliance on Conchito v. City of Tulsa, 1974 OK CR 82,
¶ 15, 521 P.2d 1384, 1389 (citing Johnson v. City of Tulsa, 1953 OK CR 84,
97 Okl.Cr. 85, 258 P.2d 695), for the proposition that “[a] city may not
impose a greater penalty for the same offense than imposed by the
state statute” is misplaced. That proposition is merely a presumption,
not a limit on legislative power, and it vanishes if the Legislature
1264
expressly grants cities such authority. Petitioner fails to acknowledge
that at the time Conchito was decided, Oklahoma law barred even cities
with criminal courts of record from imposing penalties “greater than
established by statute for the same offense.” 11 O.S.1971, § 782(c). That
provision ultimately evolved into 11 O.S. § 28-102, and as shown, the
limiting language has since been removed.
6. Petitioner generally acknowledges the penalty limits in 11 O.S.
§§ 14-111 and 28-102, but claims they only apply when the State has not
“pre-empted the field,” as it were, as to the particular type of offense
in question. That is, he claims such penalties are only valid if they are
tied to an offense created by the city which has no counterpart in state
law. And yet, when we consider the particular types of offenses mentioned in these provisions, we find that state law already addresses
each one. See 47 O.S. § 11-902 (driving under the influence of alcohol or
drugs); 21 O.S. §§ 1025-1031 (crimes related to prostitution); 27A O.S.
§§ 1-2-102, 2-6-206, 2-6-901 (offenses related to storm water and wastewater management).
Moreover, Petitioner’s theory leads to absurd results. For example,
he uses it to explain why our decision in Hall v. State does not weaken
his position. In his view, the ordinance at issue in Hall was never really
in conflict with state law to begin with. In essence, he appears to claim
that “failing to signal a turn when other traffic may be affected” is an
offense substantively different from “failing to signal a turn under any
circumstance.” We find this argument untenable and reject it.
We find Petitioner’s other arguments unavailing as well. He claims
that with enactment of 47 O.S. § 11-801, the Legislature intended “uniform application and enforcement of the motor vehicle rules and regulations throughout the State.” Yet this claim is belied by the Vehicle
Code itself, which (as Petitioner himself concedes) permits cities to
alter speed limits as they deem necessary for the safety of their own
streets. 47 O.S. §§ 11-801(B)(8), 11-803. We also observe that the penalties in § 11-801(G) increase not based on absolute speed, but on a
motorist’s speed relative to the posted limit. Thus, lowering the speed
limit (which cities are allowed to do) has the same practical effect that
Petitioner complains of here: it increases the potential fine for any
particular motorist driving a particular speed.
7. In Vantine, the defendant complained that a city anti-discrimination ordinance was in conflict with state law because “State Statute
provides [only] for issuance of a restraining order, whereas, the
municipal ordinance provides for the imposition of a fine.” Vantine,
1973 OK CR 442, ¶ 6, 518 P.2d at 318. We disagreed, because the Legislature had expressly given cities with criminal courts of record (including the City of Tulsa) the authority to impose fines consistent with the
one imposed on the defendant. 1973 OK CR 442, ¶ 13, 518 P.2d at 319.
2016 OK CR 13
PAUL OWEN HAMILTON, Appellant, vs.
THE STATE OF OKLAHOMA, Appellee.
No. F-2015-529. June 1, 2016
SUMMARY OPINION
SMITH, PRESIDING JUDGE:
¶1 Appellant, Paul Owen Hamilton, was
convicted by a jury in Tulsa County District
Court, Case No. CF-2014-171, of Distribution of
Child Pornography (21 O.S.2011, § 1021.2)
(Count 1) and Aggravated Possession of Child
Pornography (21 O.S.2011, § 1040.12a) (Count
2). On June 1, 2015, the Honorable William D.
LaFortune, District Judge, sentenced him in
accordance with the jury’s recommendation as
follows: Count 1, ten years imprisonment and
a $15,000 fine; Count 2, twenty-five years
imprisonment and a $10,000 fine. The court
ordered the sentences to be served consecutively, with the longer sentence (Count 2) to be
served first, and suspended the last half (five
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Vol. 87 — No. 17 — 6/25/2016
years) of Count 1. Appellant must serve 85% of
these sentences before parole eligibility.
¶2 Hamilton raises four propositions of error
in support of his appeal:
PROPOSITION I. THE EVIDENCE WAS INSUFFICIENT TO PROVE BEYOND A REASONABLE DOUBT THAT MR. HAMILTON
KNOWINGLY DISTRIBUTED CHILD PORNOGRAPHY.
PROPOSITION II. THE EVIDENCE WAS INSUFFICIENT TO PROVE BEYOND A REASONABLE DOUBT THAT MR. HAMILTON
KNOWINGLY POSSESSED CHILD PORNOGRAPHY.
PROPOSITION III. THE DISTRICT COURT’S
INTERPRETATION OF THE STATUTORY
LANGUAGE WITH RESPECT TO THE OFFENSE CHARGED IN COUNT 2 OF THE
INFORMATION AND THE FACTS UNDERLYING MR. HAMILTON’S ALLEGED OFFENSE WAS ERRONEOUS.
PROPOSITION IV. MR. HAMILTON’S SENTENCE IS EXCESSIVE AND SHOULD BE
MODIFIED.
¶3 After thorough consideration of these
propositions, and the entire record before us on
appeal, including the original record, transcripts, and briefs of the parties, we affirm. The
charges in this case stem from an investigation
by the Tulsa Police Department which, using a
popular online file-sharing program, sought
and received images of child pornography
from Appellant’s Internet Protocol (IP) address.
Those materials, in turn, served as the basis for
a warrant to search Appellant’s home computer, where over 100 images of child pornography were found.
¶4 In Propositions I and II, Appellant advances several theories as to why his convictions
should be vacated for lack of sufficient evidence.
In any case involving possession of contraband,
the fact-finder must consider all the surrounding
circumstances to decide whether the defendant’s
knowledge of the presence and nature of the
prohibited material can reasonably be inferred,
and whether anyone else might reasonably
have had access to the place where the material
was found. Proof of knowledge and control is
often circumstantial in nature. Johnson v. State,
1988 OK CR 246, ¶ 5, 764 P.2d 530, 532. However, reasonable inferences from circumstantial
evidence carry the same probative force as
Vol. 87 — No. 17 — 6/25/2016
direct evidence. Easlick v. State, 2004 OK CR 21,
¶¶ 11, 15, 90 P.3d 556, 559. Similarly, with
regard to the distribution of contraband,
including child pornography, the defendant’s
knowledge of the material, and a willful intent
to share it with others, are essential components of the charge. See Inst. No. 4-133, OUJICR (2d) (distribution of child pornography
must be “willful,” and requires that the defendant knew the nature and character of the
material distributed); Hanf v. State, 1977 OK CR
41, ¶ 14, 560 P.2d 207, 210.
¶5 In this case, two detectives with experience in computer and Internet crimes, and
child pornography investigations in particular,
testified about the receipt of files from Appellant’s IP address and the subsequent discovery
of related files on his computer. They told the
jury how file-sharing programs work, and how
files are stored on a computer. Each detective
used his personal smartphone to see whether
Appellant’s Internet connection was secure from
infiltration (password-protected), and it was.
Given the distribution of obscene material originating from Appellant’s IP address, the discovery of the same type of material on Appellant’s
computer, the suspicious log of Internet search
queries on that computer, and Appellant’s
statements to police, a rational juror could
conclude, beyond a reasonable doubt, that
Appellant knowingly possessed the obscene
material and willfully made it available online.1 Davis v. State, 1996 OK CR 15, ¶¶ 34-36,
916 P.2d 251, 260-61. Propositions I and II are
therefore denied.
¶6 In Proposition III, Appellant claims that
multiple obscene images on a single computer
hard drive should be considered a single item
of contraband, and that Count II should have
been reduced to simple (i.e. not aggravated)
possession of child pornography. Because this
issue was raised and rejected below, it has been
preserved for appellate review. Hancock v. State,
2007 OK CR 9, ¶ 114, 155 P.3d 796, 823. The
statute defining Aggravated Possession of
Child Pornography punishes the possession of
100 or more “separate materials” depicting
child pornography. 21 O.S.2011, § 1040.12a(A).
“Material” is not limited to physical objects
used to store the offensive material (such as a
computer hard drive), but includes each “image,” “picture,” or “depiction” stored therein.
See 21 O.S.2011, §§ 1040.12a(B)(2), 1040.75. The
Legislature clearly intended that each visual
image of child pornography should constitute
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1265
a separate “material” for purposes of 21
O.S.2011, § 1040.12a. The trial court properly
rejected Appellant’s argument.2 Proposition III
is denied.
¶7 As to Proposition IV, the sentences imposed were well within the statutory limits,
and we have found no improper evidence or
argument which might have unfairly prejudiced Appellant at trial. We cannot say the
sentences imposed are shocking to the conscience. Rea v. State, 2001 OK CR 28, ¶ 5, 34 P.3d
148, 149. Proposition IV is denied.
DECISION
¶8 The Judgment and Sentence of the District
Court of Tulsa County is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of
Criminal Appeals, Title 22, Ch.18, App. (2016),
the MANDATE is ORDERED issued upon the
delivery and filing of this decision.
AN APPEAL FROM THE DISTRICT COURT
OF TULSA COUNTY
THE HONORABLE WILLIAM D.
LAFORTUNE, DISTRICT JUDGE
ATTORNEYS AT TRIAL
Robert V. Henson, 405 South Boulder, Ste. 400,
Tulsa, OK 74103, Counsel for Defendant
Andrea Brown, Amanda Self, District Attorney’s Office, Tulsa County Courthouse, 500
South Denver, Tulsa, OK 74103, Counsel for the
State
ATTORNEYS ON APPEAL
Ricki J. Walterscheid, P.O. Box 926, Norman,
OK 73070, Counsel for Appellant
E. Scott Pruitt, Attorney General of Oklahoma,
Donald D. Self, Assistant Attorney General, 313
NE 21st Street, Oklahoma City, OK 73105,
Counsel for Appellee
OPINION BY: SMITH, P.J.
LUMPKIN, V.P.J.: CONCUR
JOHNSON, J.: CONCUR
LEWIS, J.: CONCUR
HUDSON, J.: CONCUR
1. Several of the Internet search queries stored by Appellant’s computer strongly suggested that a user had searched for child pornography. Appellant lived alone and there was no evidence that anyone else
currently had access to his computer. The files received from Appellant’s IP address, as well as the files discovered on his computer,
included images from “the Lolita series,” a collection of obscene
images well-known to those who investigate such matters. Both detectives in this case were familiar with these images from their prior
investigations. Images found on Appellant’s computer were introduced into evidence. Although none of the images initially received
from Appellant’s IP address were introduced, a detective testified that
one of the intercepted images, showing a nude female, approximately
12 years of age or younger, wearing high heels and posing on a white
rug, was offered to the magistrate as probable cause to search Appellant’s computer.
2. Appellant’s reliance on Brown v. State, 2008 OK CR 3, 177 P.3d
577, is misplaced. Brown was charged with 100 counts of simple possession of child pornography based on images found on several storage devices. There was no crime of “aggravated possession” at the
time. Based on statutory language relevant to the particular charge (21
O.S.2001, § 1024.1), we held that the allowable unit of prosecution was
each storage medium (e.g. CD or computer drive), rather than each
image thereon. Brown, 2008 OK CR 3, ¶ 5, 177 P.3d at 579. As the parties
and the district court observed below, the Legislature appears to have
enacted the Aggravated Possession statute in direct response to Brown.
In any event, the language of § 1040.12a is quite clear on the subject.
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Disposition of Cases
Other Than by Published Opinion
COURT OF CRIMINAL APPEALS
Wednesday, June 1, 2016
F-2015-361 — Jimmy Curtis Easter, Appellant, was convicted of, count one, first degree
arson in violation of 21 O.S.2011, § 843.5(A),
count two, interference with emergency telephone call in violation of 21 O.S.2011 § 1211.1,
count three, malicious injury to property in
violation of 21 O.S.2011, § 1760, in Tulsa County district court case number CF-2012-2548,
before the Honorable Sharon Holmes, District
Judge. The jury set punishment at, count one,
ten (10) years imprisonment and a $10,000.00
fine, count two, one year and a $3,000.00 fine
and, count three, a $500.00 fine. The trial court
sentenced accordingly ordering that the incarceration terms be served concurrently. Easter
has perfected an appeal to this court. AFFIRMED. Opinion by: Lewis, J.; Clancy Smith,
P.J., Concurs; Lumpkin, V.P.J., Concurs; Johnson, J., Concurs; Hudson, J., Concurs.
RE-2014-929 — On April 21, 2003, Appellant
Michael Len Rogers, represented by counsel,
entered a guilty plea to Count 1, Lewd Acts
with a Child Under 16 in Oklahoma County
Case No. CF-2002-2544. Rogers was sentenced
to fifteen (15) years, all suspended, subject to
terms and conditions of probation. On June 8,
2007, the State filed an Application to Revoke
Rogers’s suspended sentences alleging he committed the new offense of Kidnapping as charged
in Potter County Texas Case No. 53,740-A. On
October 28, 2014, a revocation hearing was held
and Rogers’s suspended sentence was revoked
in full. The revocation of Rogers’s suspended
sentence is AFFIRMED. Opinion by: Lumpkin,
V.P.J.; Smith, P.J., Concur; Johnson, J., Concur;
Lewis, J., Concur; Hudson, J., Concur.
Thursday, June 2, 2016
RE-2015-420 — On January 28, 2013, Appellant Jason Charles Ware, represented by counsel,
entered a plea of guilty to Count 1, Distribution
of a Controlled Dangerous Substance (CDS)
(marijuana) and Count 2, Possession of Proceeds Derived from violation of the Uniform
Controlled Dangerous Substances Act, both
after former conviction of two or more felonies
in Oklahoma County Case No. CF-2010-7503.
1268
Ware was sentenced to fifteen (15) years for
Counts 1 and 2, with all but the first 52 weekends in the county jail suspended, subject to
terms and conditions of probation. That same
date, Ware entered a guilty plea to a charge of
Domestic Abuse by Strangulation in Oklahoma County Case No. CF-2010-7300. He was
sentenced to three (3) years, suspended, subject to terms and conditions of probation. The
sentences were ordered to be served concurrently. On April 13, 2015, the State filed its Second Amended Application to Revoke Ware’s
suspended sentences alleging Ware committed
the new offenses of Count 1, Possession of a CDS
(marijuana) and Count 2, Possession of Drug
Proceeds as alleged in Oklahoma County Case
No. CF-2013-7453 and committed other probation violations. On April 13, 2015, the District
Court of Oklahoma County, the Honorable
Cindy Truong, District Judge, revoked Ware’s
suspended sentences in full. The revocation of
Ware’s suspended sentences is AFFIRMED.
Opinion by: Lumpkin, V.P.J.; Smith, P.J., Concur; Johnson, J., Concur; Lewis, J., Concur;
Hudson, J., Concur.
F-2015-543 — Travis Randolph Penton, Appellant, was tried by jury for the crime of Possession of a Controlled Dangerous Substance
(Methamphetamine) (Count 1), After Former
Conviction of Three Felonies, and Unlawful
Possession of Drug Paraphernalia (Count 2) in
Case No. CF-2014-376 in the District Court of
Kay County. The jury returned a verdict of
guilty and recommended as punishment
imprisonment for six (6) years in Count 1 and
a fine in the amount of $1,000.00 in Count 2.
The trial court sentenced accordingly. From
this judgment and sentence Travis Randolph
Penton has perfected his appeal. The Judgment
and Sentence is AFFIRMED. Opinion by:
Lumpkin, V.P.J.; Smith, P.J., Concur; Johnson,
J., Concur; Lewis, J., Concur in Result; Hudson,
J., Concur.
Tuesday, June 7, 2016
F-2015-240 — On February 1, 2013, Appellant
Richard Alfred Hughey, represented by counsel,
entered a guilty plea to Count 1, Transferring a
Bodily Fluid Upon a Police Officer and Count 2,
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Vol. 87 — No. 17 — 6/25/2016
Possession of Marijuana (second offense) after
former conviction of two or more felonies in
Ottawa County Case No. CF-2012-426. Hughey’s
sentencing was deferred pending completion of
the Ottawa County Drug Court program. On
February 18, 2015, the State filed an Application
to Terminate Hughey from Drug Court. On
March 6, 2015, the Honorable Robert G. Haney,
District Judge, terminated Hughey’s Drug Court
participation and sentenced him as specified in
his plea agreement. From this judgment and
sentence Hughey appeals. Hughey’s termination from Drug Court is AFFIRMED. Opinion
by: Johnson, J.; Smith, P.J., concurs; Lumpkin,
V.P.J., concurs; Lewis, J., concurs in results; Hudson, J., concurs.
RE-2015-85 — On July 16, 2007, Appellant Stephen Michael Matthews, represented by counsel, entered a plea of nolo contendere to Count 1,
Possession of a Controlled Dangerous Substance
(CDS) and Count 2, Possession of a CDS without
a tax stamp in Wagoner County Case No. CF2007-98. Matthews was sentenced to ten years
for Count 1 and five years for Count 2, with all
but 26 weekends in jail suspended, subject to
terms and conditions of probation. On October
1, 2012, the State filed an Application to Revoke
Matthews’s suspended sentence alleging he
failed to report on monthly scheduled supervision days from January to August of 2012; failed
to stay current with supervision fees; and failed
to notify the District Attorney’s office of his
change of address. On October 3, 2014, a revocation hearing was held and Matthews’s suspended sentence was revoked in full. The revocation
of Matthews’s suspended sentence is AFFIRMED.
Opinion by: Johnson, J.; Smith, P.J., concurs in
results; Lumpkin, V.P.J., concurs in results;
Lewis, J., concurs in results; Hudson, J., concurs.
Tuesday, June 14, 2016
C-2015-920 — Gilbert Paz, Petitioner, entered
negotiated guilty pleas to the following crimes:
Count 1 - First Degree Felony Murder, Count 2
- Shooting with Intent to Kill, Count 3 - Conspiracy, Count 4 - Attempted Robbery with a
Firearm and Count 5 - Possession of a Firearm in
Case No. CF-2012-2150 in the District Court of
Cleveland County. On June 23, 2014, Petitioner
filed a motion to withdraw plea; the court formally sentenced Petitioner in accordance with
the plea agreement to life imprisonment with all
but 38 years suspended on Counts 1 through 4
and 10 years imprisonment on Count 5, with all
terms to be served concurrently. Petitioner appealed the district court’s denial of his motion to
Vol. 87 — No. 17 — 6/25/2016
withdraw pleas, and this court granted certiorari
on August 6, 2015. On remand the district court
appointed new counsel for Petitioner to advocate his request to withdraw his pleas. On October 19, 2015, the court received evidence and
argument and denied Petitioner’s motion to
withdraw pleas. Petitioner has perfected his
appeal of the district court’s denial of his request
to withdraw his pleas. CERTIORARI DENIED.
Opinion by: Smith, P.J.; Lumpkin, V.P.J., concur;
Johnson, J., concur; Lewis, J., concur; Hudson, J.,
concur.
ACCELERATED DOCKET
Monday, June 13, 2016
J-2016-113 — W.C.C., Appellant, was adjudicated as a delinquent child following a non-jury
trial in the District Court of Creek County, Case
No. JDL-2015-133. Appellant appeals from the
order adjudicating him as a delinquent child.
The order of the District Court is AFFIRMED.
Opinion by: Johnson, J.; Smith, P.J.: Concur;
Lumpkin, V.P.J.: Concur; Lewis, J.: Concur; Hudson, J.: Concur.
COURT OF CIVIL APPEALS
(Division No. 1)
Friday, June 3, 2016
114,416 — In the Matter of H.D.F. and J.H.F.,
Deprived Children: Brandon Frazier, Appellant,
vs. State of Oklahoma, Appellee. Appeal from
the District Court of Love County, Oklahoma.
Honorable Wallace Coppedge, Trial Judge. Appellant, Brandon J. Frazier, (Father) appeals the
trial court’s order terminating his parental rights
to H.D.F. and J.H.F. Father argues that the order
is fundamentally flawed because it lacks specific
findings of the legal grounds that the court
relied on for its determination. At trial, the state
sought termination based upon (1) Father’s failure to correct the conditions which led to the
deprived adjudication, (2) Father’s felony conviction for child neglect, and (3) Father’s incarceration arising from child neglect. The trial
court’s order states that termination is in the best
interest of the children but it does not specify
which of the seventeen legal grounds of 10A O.S.
Supp.2014 §1-4-904 supports that finding. The
omission necessitates remand for entry of an
order that includes the requisite findings. REMANDED WITH INSTRUCTIONS. Opinion by
Goree, J.; Buettner, V.C.J., P.J., and Mitchell, J.,
concur.
The Oklahoma Bar Journal
1269
(Division No. 2)
Friday, May 27, 2016
from Court of Civil Appeals, Division II, by
Thornbrugh, P.J.; Barnes, J., and Rapp, J., concur.
114,507 — Eddie Fagan, Plaintiff/Appellant,
vs. Frogg Toggs, Inc., and Gunterville Breathables, Inc., Defendants/Appellees. Proceeding
to review a judgment of the District Court of
Oklahoma County, Hon. Bryan C. Dixon, Trial
Judge. Plaintiff Eddie Fagan appeals the district court’s summary judgment against his
product liability and negligence claims. On
review, we find that plaintiff failed the meet
the third required element of a product liability
case – that the product in question was dangerous to an extent beyond that which would be
contemplated by the ordinary consumer who
purchases it. However, we also find that plaintiff has stated a res ipsa loquitor negligence case
that is not amenable to summary disposition
pursuant to the current record. AFFIRMED IN
PART, VACTAED IN PART. Opinion from
Court of Civil Appeals, Division II, by Thornbrugh, P.J.; Rapp, J., and Barnes, J., concur.
(Division No. 3)
Wednesday, May 25, 2016
Thursday, June 9, 2016
113,620 — Tulsa Pythian Benevolent Association, agent for Tulsa Pythian Manor, Inc., dba
Pythian Manor West Apartments, Plaintiff/Appellee, v. Jayson Woebkenberg, Defendant/Appellant. Proceeding to review a judgment of the
Small Claims Court of Tulsa County, Hon. Millie
Otey, Trial Judge. Jayson Woebkenberg appeals
the decision of the small claims court in a forcible entry and detainer action evicting Woebkenberg from federally subsidized housing at the
Pythian Manor West Apartments after the expiration of his one-year lease. In December 2014,
Pythian Manor sent Woebkenberg a “notice of
non-renewal of lease” as of December 31, stating
that he had failed to disclose his eviction from
his previous apartment on his application. Woebkenberg refused to leave, arguing that he had
not intentionally made any misrepresentation
because he was not aware that he had been
evicted from his previous apartment, and that he
had a right to a continuing lease pursuant to
federal law. His counsel raised numerous objections based on federal housing law. Persons who
have been evicted from federally subsidized
housing lose eligibility to live at Pythian Manor.
The record reveals Woebkenberg did not provide the necessary facts to enable Pythian Manor
to determine his eligibility. A lease of federally
subsidized housing may be denied renewal pursuant to 24 C.F.R. § 247.3 criteria. We find those
criteria were met in this case, and affirm the
decision of the trial court. AFFIRMED. Opinion
1270
114,035 (Consolidated with Case No. 114,046)
— In the Matter of J.M.B., S.J. and Z.J., Children
Under 18 Years of Age: Dwight Johnson and
Jessica Firquain, Appellants, vs. State of Oklahoma, Appellee. Appeal from the District Court
of Tulsa County, Oklahoma. Honorable Doris
Fransein, Trial Judge. The appeals of separate
orders terminating the parental rights of the
Appellants following jury verdicts were consolidated for appellate consideration. Appellant Johnson argues the deprived adjudication
of Z.J. was constitutionally and statutorily
infirm. Appellant Firquain argues the State
failed to meet its statutory obligation to make
reasonable efforts to reunite her with her children. HELD: No reversible error is shown as to
the deprived adjudication of Z.J., either on
constitutional or on statutory grounds. Under
the evidence presented, reasonable efforts had
been made to reunite Appellant Firquain with
her children. Clear and convincing evidence
supports the orders entered based on the jury’s
verdicts, and the record does not support any
reversible error or abuse of discretion. The terminations of parental rights as to both Appellants are AFFIRMED. Opinion by Hetherington,
J.; Bell, P.J., and Joplin, J., concur.
Friday, May 27, 2016
112,868 — In Re the Marriage of Virgil Allen
Collins and Mary Kay Collins: Virgil Allen Collins, Petitioner/Appellee, vs. Mary Kay Collins, Respondent/Appellant. Appeal from the
District Court of Garfield County, Oklahoma.
Honorable Dennis Hladik, Trial Judge. Mary
Kay Collins (Wife) appeals from a decree dissolving the marriage between Virgil Allen Collins (Husband) and Wife and the denial of her
motion for new trial. Husband argues Wife’s
petition in error filed seventy-one days after
the decree was filed is untimely because her
new trial motion, which was filed fourteen
days after the filing of the decree, did not
extend her appeal time. Wife contends her
attorney did not prepare the decree and the
record fails to show it was mailed to her or her
attorney. We conclude the record demonstrates
her counsel’s knowledge and participation
with Husband’s counsel in the entire process to
settle the proposed Decree which imposed an
obligation on Wife’s counsel to monitor the
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Vol. 87 — No. 17 — 6/25/2016
appearance docket for its filing. Under the specific facts of this case, § 990.2(C)’s mailing provision does not apply and the appeal time was
triggered the date the Decree was filed. Wife’s
appeal of the underlying decree is untimely
and must be dismissed. Because Wife’s remaining proposition is neither supported by reasoned argument nor supporting authority, the
order denying her motion for new trial is
affirmed. DISMISSED IN PART, AFFIRMED IN
PART. Opinion by Hetherington, J.; Bell, P.J.,
and Joplin, J., concur.
113,863 — In Re the Marriage of Gayle Michele Segura and Manuel A. Segura: Gayle
Michele Segura, Petitioner/Appellee, vs. Manuel A. Segura, Respondent/Appellant. Appeal
from the District Court of Kingfisher County,
Oklahoma. Honorable Paul K. Woodward,
Judge. Appellant, Manuel Segura (Appellant/
Father/Husband), seeks review of the trial
court’s decree of dissolution of marriage,
issued by the court on March 24, 2015. The
Seguras were married in 1998 and have two
children, only one of which was a minor at the
time the divorce decree was issued. Mother,
Gayle Segura (Appellee/Mother/Wife), was
awarded custody of the minor child, age 13,
and Father was given standard visitation during the school year and extended visitation
during the summer. From the March 24, 2015
decree, Father/Appellant brings this appeal.
Father asserts nine propositions of error on
appeal. Child support proceedings and matters
of alimony and property division are equitable
in nature. Merritt v. Merritt, 2003 OK 68, ¶7, 73
P.3d 878, 881-82; Carpenter v. Carpenter, 1983 OK
2, 657 P.2d 646, 651. The decision of the trial
court will not be disturbed absent an abuse of
discretion or a finding the trial court acted
clearly contrary to the weight of the evidence.
The trial court’s decision with respect to the
award of “standard visitation” to Father is
reversed, insofar as there are several variations
on the standard visitation format and it is not
clear from the order or the record on appeal
which version of “standard visitation” was
awarded Father. We also reverse the trial
court’s order awarding the 2001 GMC truck to
Mother/Wife. Mother concedes this property
was awarded to Husband by virtue of the parties’ stipulations. In all other respects, the
decree of dissolution of marriage order of the
trial court is affirmed. AFFIRMED IN PART,
REVERSED IN PART, AND REMANDED.
Opinion by Joplin, J.; Bell, P.J., and Hetherington, J., concur.
Vol. 87 — No. 17 — 6/25/2016
114,298 — Department of Human Services
and CompSource Mutual Insurance Co., Petitioners, vs. Rebecca Reavis and The Workers’
Compensation Court of Existing Claims,
Respondents. Proceeding to Review an Order
of a Three-Judge Panel of the Workers’ Compensation Court of Existing Claims. Petitioners
(Employer) seek review of an order of a ThreeJudge Panel of the Workers’ Compensation
Court of Existing Claims (Panel), which sustained the trial court’s order finding Respondent (Claimant) did not sustain a change of
condition for the worse to the cervical spine,
but found there was a change in physical condition to the right and left shoulders. The trial
court ordered Employer to provide medical
care to Claimant for those two body parts.
Claimant submitted a chart that compares her
range of motion evaluation by Dr. Flesher in
2014 with the same evaluation performed by
Dr. Lance Rosson in 2011. According to this
chart, the objective medical evidence shows a
change in condition for the worse to her right
shoulder’s flexion and abduction. We find the
Panel’s decision was not contrary to the clear
weight of the evidence. Accordingly, the Panel’s
order is sustained. The medical treatment for
this claim should be ordered as soon as possible
to avoid further deterioration of Claimant’s
injury. Claimant’s request for an evaluation and
medical treatment of her neck is denied. SUSTAINED. Opinion by Bell, P.J.; Joplin, J., and
Hetherington, J., concur.
114,443 — In the Matter of J.A.B., Jr., an
Alleged Deprived Child: James Rimel, Appellant, vs. State of Oklahoma, Appellee. Appeal
from the District Court of Carter County, Oklahoma. Honorable Dennis Morris, Judge. Appellant (Father) appeals from the trial court’s
order entered upon a jury’s verdict terminating
his parental rights to J.A.B., Jr., (minor child).
The natural Mother voluntarily relinquished
her parental rights to the child and is not a
party to this appeal. Father’s parental rights
were terminated due to his diagnosed cognitive disorder which rendered him incapable of
exercising his parental rights without harming
the child. Father’s parental rights were also
terminated for his failure to correct the conditions which lead to the deprived child adjudication within the statutory time frame and
because termination was in the child’s best
interests. After reviewing the record, we hold
the trial court’s order terminating Father’s
parental rights is supported by clear and con-
The Oklahoma Bar Journal
1271
vincing evidence and AFFIRM. Opinion by
Bell, P.J.; Joplin, J., and Hetherington, J., concur.
Friday, June 3, 2016
113,6636 — Rodney Wells, Plaintiff/Appellee, vs. Deborah Hendrix, Defendant/Appellant. Appeal from the District Court of Caddo
County, Oklahoma. Honorable David A. Stephens, Judge. Defendant seeks review of the
trial court’s order granting the application for
protection order filed by Plaintiff. In this
appeal, Defendant challenges issuance of the
protection order as contrary to the evidence.
Plaintiff alleged in his petition for protection
order that he was related by blood to Defendant, and that Defendant had, inter alia,
stalked, harassed and done physical harm to
him. However, the record on appeal does not
contain a transcript of the testimony and evidence adduced at the hearing on Plaintiff’s
petition for protection order. In the absence of
a transcript, we must presume the trial court’s
judgment was responsive to the testimony and
evidence presented at the hearing. On the
record before us, we cannot say the trial court
abused its discretion in granting Plaintiff’s
petition for protection order. AFFIRMED.
Opinion by Joplin, J.; Bell, P.J., and Hetherington, J., concur.
114,136 — Holiday Inn & Suites/Premier Hospitality Management Group, Inc. and Zenith
Insurance Company, Petitioners, vs. James
Knight and The Workers’ Compensation Commission, Respondents. Proceeding to Review an
Order of the Workers’ Compensation Commission En Banc. Employer seeks review of an order
of the Workers’ Compensation Commission En
Banc which affirmed in part and reversed in part
the order of an administrative law judge authorizing the surgical back treatment for Claimant.
In this proceeding, Employer asserts the award
is contrary to the clear weight of the evidence
demonstrating the Claimant’s pre-existing, nonjob-related degenerative disk disease, a noncompensable condition under 85A O.S. §2(9)(b)
(5) and (6). Employer sufficiently raised the defense of a degenerative condition, excluded by
§2(9)(b)(5), at trial, and Employer is not precluded from assertion of that defense in this
appeal. However, the court-appointed independent medical examiner, Dr. Parkinson,
diagnosed and reported an on-the-job injury to
Claimant’s back. Dr. Tibbs diagnosed an end
plate fracture of the L5 vertebra caused by
Claimant’s slip-and-fall on ice at work. Dr.
Beall opined the condition of Claimant’s back
1272
could have been caused or aggravated by
Claimant’s slip-and-fall on ice at work. Although all the treating and examining physicians noted some degenerative changes to
Claimant’s back, the reports of Drs. Tibbs, Beall
and Parkinson constitute reliable, material,
probative and substantial competent evidence
to support the order of the Workers’ Compensation Commission. The order of the Workers’
Compensation Commission is therefore SUSTAINED. Opinion by Joplin, J.; Bell, P.J., and
Hetherington, J., concur.
(Division No. 4)
Tuesday, May 17, 2016
113,495 (Consolidated with Case No. 113,933)
— Summit Bank, now known as Commerce
Bank, Plaintiff/Appellee, vs. Subsurface Minerals Group, LLC, Defendant/Appellant, vs.
Summit Exploration II, LLC; Lone Wolf Petroleum Corp.; Consolidated Oil Well Services,
LLC; Houston Electric Inc.; Gas Technology
Corporation; Contractors Oilfield Service &
Supply, LLC; Crown Oil Field Services, LLC;
K&W Well Service, Inc.; Coral Midstream Processing, LLC; Centrilift, a Division of Baker
Hughes Oilfield Operations, Inc.; and Schlumberger Technology Corp., Defendants. Appeal
from an order the District Court of Kay County,
Hon. D. W. Boyd, Trial Judge. Subsurface Minerals Group, LLC (SMG), appeals a trial court
order denying its motion to quash a writ of
execution as well as an order confirming a
sheriff’s sale. Pursuant to 12 O.S.2011, § 706, a
judgment lien is created when a Statement of
Judgment, “substantially in the form prescribed by the Administrative Director of the
Courts,” has been filed in the county clerk’s
office. In the present case, Summit used an incorrect case number on the Statement of Judgment. However, the parties do not dispute that
all other requirements regarding the form and
content of the Statement of Judgment were correct. Accordingly, we conclude the Statement
of Judgment was sufficient to give notice to
any interested party, including SMG, that Summit claimed a lien against SMG. We hold Summit substantially complied with the statute and
reject SMG’s assertion that Summit failed to
perfect its judgment lien. SMG further contends the execution and sheriff’s sale was null
and void because there was no valid underlying judgment lien. We find Summit’s judgment
lien was properly perfected and renewed and
reject this assertion of error as well. AFFIRMED.
Opinion from Court of Civil Appeals, Division
The Oklahoma Bar Journal
Vol. 87 — No. 17 — 6/25/2016
IV, by Goodman, C.J.; Wiseman, P.J., and Fischer, J., concur.
Tuesday, May 24, 2016
113,867 — In the Matter of the Adoption of:
V.C.P., a minor child, Justin Michael Calvert
and Amanda Marie Calvert, Petitioners/
Appellees, vs. Christopher Lewis Price, Respondent/Appellant. Appeal from an order
the District Court of Logan County, Hon. Robert Hudson, Trial Judge. Christopher Lewis
Price appeals a trial court order overruling his
motion to dismiss and sustaining Justin Calvert’s and Amanda Calvert’s application for an
order finding that VCP is eligible for adoption
without Price’s consent. The issues we address
on appeal are whether the trial court erred in
denying the motion to dismiss or in sustaining
the Calverts’ application. We first reject Price’s
contention that 10 O.S.2011 § 7505-4.1 is jurisdictional. We further conclude Price has failed
to show he did not receive adequate notice.
Although there was no court order of support
here, Price testified he was financially able to
make support payments but did not make any
during the relevant period — 12 consecutive
months of the preceding 14 months before the
filing of the petition. Although Price claims he
did not know where Amanda and VCP were
during this period, he knew how to employ
resources to find her. We conclude the Calverts
showed by clear and convincing evidence that
Price willfully failed to support VCP during
the relevant period because he had the financial means to do so but provided no support.
Price also testified he had not maintained frequent regular contact with VCP or exercised
parental rights or responsibilities during the
relevant period. Finding no error or abuse of
discretion, we affirm the trial court’s order.
AFFIRMED. Opinion from Court of Civil Appeals, Division IV, by Wiseman, P.J.; Goodman,
C.J., and Fischer, J., concur.
Thursday, May 26, 2016
113,807 (Consolidated with Case No. 113,856)
— In the Matter of: G.L.M., K.M., C.M., and
B.M., Alleged Deprived Children, Joshua Meshew and Shannon Meshew, Appellants, vs.
State of Oklahoma, Appellee. Appeal from an
order of the District Court of McClain County,
Hon. Charles N. Gray, Trial Judge, terminating
the parental rights of Father and Mother to
their minor children, GM, KM, CM, and BM.
This matter comes to us for the second time on
appeal after remand of Case No. 112,900. In the
Vol. 87 — No. 17 — 6/25/2016
first appeal, we held that the trial court’s order
terminating their parental rights was fundamentally deficient because it failed to identify
the specific statutory basis relied on by the
court in its decision to terminate parental
rights and also failed to include statutorily
required findings. The trial court issued a
revised order terminating Mother’s and
Father’s parental rights. After reviewing the
record on appeal and relevant law, we conclude the revised order and other filings in this
case do not comply with the requirements set
out in In re T.T.S., 2015 OK 36, ___ P.3d ___. We
reverse the decision of the trial court and
remand for further proceedings in conformity
with T.T.S. and our Opinion. REVERSED AND
REMANDED FOR FURTHER PROCEEDINGS. Opinion from the Court of Civil Appeals,
Division IV, by Wiseman, P.J.; Goodman, C.J.,
and Fischer, J., concur.
Tuesday, May 31, 2016
113,190 — In Re the Marriage of: Kenneth R.
Bryan, Petitioner/Appellant, vs. Stacey L. Bryan,
Respondent/Appellee. Appeal from an order of
the District Court of Oklahoma County, Hon.
Don Andrews, Trial Judge, awarding Husband,
Kenneth R. Bryan, certain rental property and
its corresponding mortgage debt and ordering
Husband to pay Stacey L. Bryan (Wife) $75,000
representing the property’s value at the time of
trial. We are asked to assess the propriety of
that decision. We find the Property is Wife’s
separate property and it is set aside to her as
such. She is directed to pay the mortgage debt
on the Property, hold Husband harmless thereon and refinance the Property to remove Husband from the mortgage. We therefore reverse
the trial court’s decision ordering Husband to
pay Wife $75,000, ordering Wife to execute a
Quit Claim Deed on receipt of the $75,000, and
ordering Husband to pay the mortgage balance on the Property and hold Wife harmless
on that debt. This matter is remanded to the
trial court to modify the divorce decree as
directed by the Opinion. REVERSED AND REMANDED WITH DIRECTIONS. Opinion from
the Court of Civil Appeals, Division IV, by
Wiseman, P.J.; Fischer, J., concurs, and Goodman, C.J., concurs specially.
Thursday, June 2, 2016
113,631 — Betty Pitts-Cartwright, Plaintiff/
Appellee, vs. The Estate of Angela Coles, Deceased, and David Nelson, as Personal Representative thereof, Defendant/Appellant. Appeal
The Oklahoma Bar Journal
1273
from an order the District Court of Sequoyah
County, Hon. Lawrence L. Langley, Trial Judge.
The Estate of Angela Coles, Deceased and
David Nelson, as personal representative (collectively, Probate Estate), appeal the trial
court’s denial of Probate Estate’s motion to
reconsider the trial court’s order which
approved the creditor’s claim of Attorney Betty
Pitts-Cartwright and required Probate Estate to
honor that claim. Having considered the appellate arguments, we find no abuse of discretion
occurred. The trial court’s order was proper,
and therefore the order denying its reconsideration is affirmed. AFFIRMED. Opinion from
Court of Civil Appeals, Division IV, by Goodman, C.J.; Fischer, J., concurs, and Wiseman,
P.J., concurs in result.
ORDERS DENYING REHEARING
(Division No. 1)
Friday, May 20, 2016
113,920 — Paula New, Individually and as
Parent and Next Friend of A.N., a Minor, Plaintiff/Appellee, vs. David Stanley Chevrolet,
Inc., an Oklahoma Corporation, Defendant/
Appellant. Plaintiff/Appellee’s Petition for Rehearing filed April 28, 2016 is DENIED.
Wednesday, June 1, 2016
114,093 — Burt Witaschek, Petitioner, vs.
American Airlines, Inc., New Hampshire Insurance Company, and The Workers’ Compensation Court of Existing Claims, Respondents.
Petitioner’s Petition for Rehearing filed May 16,
2016 is DENIED.
(Division No. 2)
Wednesday, May 18, 2016
113,723 (Consolidated with Case No. 113,725
and Companion with Case No. 112,411) —
James W. Trenz, individual, and Terrane Associates, Inc., Plaintiffs, vs. Glen Rupe, individual
and Rupe Oil Company, Inc., Defendants/Appellants, and Peter Paul Petroleum Company,
Defendant, and Bradley D. Brickell & Associates, and Ted W. Haxel, Attorney Lien Claimants/Appellees, and Mahaffey & Gore, P.C.,
Attorney Lien Claimant. Appellees’ Petition
for Rehearing is hereby DENIED.
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1274
The Oklahoma Bar Journal
Vol. 87 — No. 17 — 6/25/2016
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LOOKING FOR LUXURIOUS OFFICE SPACE? Office
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Beautiful reception area, large conference room, full
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INTERESTED IN PURCHASING PRODUCING &
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Please contact: Patrick Cowan, CPL, CSW Corporation,
P.O. Box 21655, Oklahoma City, OK 73156-1655; 405755-7200; Fax 405-755-5555; email: [email protected]
PREMIUM EDMOND OFFICE SPACE FOR LEASE IN
LAW FIRM BUILDING. 4 offices available. Lease includes parking, conference room use and wifi. Located
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BRIEF WRITING, APPEALS, RESEARCH AND DISCOVERY SUPPORT. Eighteen years experience in civil
litigation. Backed by established firm. Neil D. Van Dalsem, Taylor, Ryan, Minton, Van Dalsem & Williams PC,
918-749-5566, [email protected]
Want To Purchase Minerals AND OTHER
OIL/GAS INTERESTS. Send details to: P.O. Box
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CONTRACT LEGAL SERVICES – Lawyer with
highest rating and with 30+ years’ experience on both
sides of the table is available for strategic planning,
legal research and writing in all state and federal trial
and appellate courts and administrative agencies.
Admitted and practiced before the United States
Supreme Court. Janice M. Dansby, 405-833-2813,
[email protected]
Vol. 87 — No. 17 — 6/25/2016
GORGEOUS PROFESSIONAL OFFICE SPACE available July 1 in small office park with access to NW Exp.
Way. Beautifully landscaped, security system, plentiful
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The Oklahoma Bar Journal
1275
OFFICE SPACE
POSITIONS AVAILABLE
LUXURY OFFICE SPACE - Two offices for lease, one at
$670 and one at $870 in the Esperanza Office Park near
NW 150th and May in OKC. Lease includes: Fully furnished reception area; receptionist; conference room;
complete kitchen; fax; high-speed internet; building
security; and, free parking. Please contact Gregg Renegar at 405-285-8118.
SOUTH TULSA LAW FIRM HAS AN OPENING FOR
A PARALEGAL. We are looking for a candidate that
has background experience in insurance defense;
trucking experience would be a plus. The duties involve the management of all of the documents related
to the defense of personal injury cases. The ability to
request, organize and review medical records is a must.
The duties also include preparing matters for significant events such as a deposition, mediation or trial.
Candidate should have excellent organization skills.
Please send your resume to [email protected]
OFFICE SHARE
OFFICE SPACE – MIDTOWN LAW CENTER
One space available – easy walk to multiple Midtown
restaurants. Turn-key arrangement includes phone,
fax, LD, Internet, gated parking, kitchen, storage,
2 conference rooms and receptionist. Share space
with 7 attorneys, some referrals.
405-229-1476 or 405-204-0404
POSITIONS AVAILABLE
SEEKING ASSISTANT DISTRICT ATTORNEY FOR
LOGAN COUNTY DISTRICT ATTORNEY’S OFFICE located in Guthrie. Minimum 5 years major crimes jury
trial experience required. Prosecution experience preferred. Must have strong work ethic and ability to professionally work with partner agencies, law enforcement
and the bar. Send resume and contact information to
[email protected]
THE OKLAHOMA BAR ASSOCIATION HEROES program is looking for several volunteer attorneys. The
need for FAMILY LAW ATTORNEYS is critical, but attorneys from all practice areas are needed. All ages, all
counties. Gain invaluable experience, or mentor a
young attorney, while helping someone in need. For
more information or to sign up, contact Gisele Perryman, 405-416-7086 or [email protected]
AV RATED TULSA INSURANCE DEFENSE, SEEKS
ASSOCIATE WITH 2-4 YEARS EXPERIENCE preferably in civil litigation. Deposition experience a plus. Candidate will conduct depositions, respond to discovery,
propound discovery, draft reports to clients regarding
auto accident, products liability, premises liability.
Health insurance and 401K benefits. Send resume to
Gene Robinson at [email protected]
THE OFFICE OF THE DISTRICT ATTORNEY, DISTRICT #26, IS SEEKING AN ASSISTANT DISTRICT
ATTORNEY TO BE ASSIGNED TO THE JUVENILE
CASELOAD IN THE WOODWARD COUNTY DISTRICT ATTORNEY’S OFFICE. Applicants must have
the ability to prosecute bench and jury trials. In addition, applicants must possess strong writing and research
skills, and the ability to effectively communicate and
work with law enforcement and other agencies. This is a
salaried position with full state benefits. Time is of the
essence. Please forward a resume with references, along
with a letter to the Woodward County District Attorney’s
Office, 1600 Main St., Woodward, OK 73801.
1276
SMALL, AV-PREEMINENT RATED TULSA FIRM
SEEKS PARALEGAL OR LEGAL SECRETARY to assist
with fast-paced domestic litigation practice. Salary
commensurate with experience. Send resume to “Box
T,” Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, OK 73152.
THE BUREAU OF INDIAN AFFAIRS, EASTERN
OKLAHOMA REGION, MIAMI AGENCY, COURT OF
INDIAN APPEALS, IS SEEKING JUDGES FOR AN
APPELLATE PANEL. An ideal candidate must have at
least 10 years of experience, knowledge of issues facing
Indian country and be a member in good standing of
the Oklahoma Bar Association. Prior experience as a
judge is not required, but is recommended. To be considered, please submit a cover letter and resume with
references by email to [email protected] no
later than July 15, 2016.
SWEET LAW FIRM IS SEEKING AN ASSOCIATE ATTORNEY WITH 1-3 YEARS EXPERIENCE to join its
Oklahoma City office. The ideal candidate will have
experience in research and writing, drafting and arguing motions, and be able to manage a caseload of civil
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must be able to work in a fast paced, high volume, team
environment. The firm offers competitive salary and
benefits including health insurance and 401k plan participation. Submit a resume and a writing sample to Suzy
Klepac at [email protected] All applications are
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ATTORNEY
(with 3 to 5 years experience)
needed for general civil practice, by AV-rated Tulsa
insurance and transportation defense firm. Very
busy, fast-paced office offering competitive salary
commensurate with experience, health/life insurance, 401k, etc. Candidates with strong academic
background and practical litigation experience,
please send a résumé and writing sample (10 pg.
max) in confidence via email to [email protected]
Gibbs Armstrong Borochoff Mullican & Hart, P.C.
The Oklahoma Bar Journal
Vol. 87 — No. 17 — 6/25/2016
POSITIONS AVAILABLE
POSITIONS AVAILABLE
OKLAHOMA BUREAU OF NARCOTICS IS SEEKING
A STAFF ATTORNEY at its Oklahoma City Headquarters to perform legal services related to a state law enforcement agency. This position will be tasked to advise
law enforcement in both civil and administrative investigations, assist in all aspects of the administrative process
and manage wiretap and civil forfeiture cases. Applicants must be licensed to practice law in Oklahoma and
have 5 years of experience managing all aspects of criminal litigation. Compensation will range from $60,000$70,000 annually with a state benefit package. This position closes on July 8, 2016, at 5 p.m. Please forward a
resume and cover letter to 419 NE 38th Terrace, OKC, OK
73105, fax to 405-530-3192 or email [email protected]
ok.us. For a more detailed job description, requirements
and salary range, please see the entire post on www.
ok.gov/obndd/Jobs/index.html.
SE OKLAHOMA LAW FIRM IS SEEKING ATTORNEY
FOR A NEWLY CREATED ASSOCIATE POSITION. Applicants must be able to carry significant caseload, including criminal and family law cases. If sitting at a desk in a
back room without distraction is your idea of practicing
law, this would not be the job for you. If you want to learn
to practice law in a courtroom and you are not humorless
or have poor grammar, please send your resume and
cover letter to [email protected]
NORMAN/TULSA LAW FIRM IS SEEKING SHARP,
MOTIVATED ATTORNEYS for fast-paced transactional
work. Members of our growing firm enjoy a team atmosphere and an energetic environment. Attorneys will be
part of a creative process in solving tax cases, handle an
assigned caseload, and will be assisted by an experienced support staff. Our firm offers health insurance
benefits, paid vacation, paid personal days, and a 401K
matching program. Applicants need to be admitted to
practice law in Oklahoma. No tax experience necessary.
Submit cover letter and resume to [email protected]
OKLAHOMA CORPORATION COMMISSION SEEKS
A CERTIFIED COURT REPORTER. Requirements consist of Statutory Requirements 20 O.S. 1981 Section
106.3 (B). Takes verbatim recordings of all court proceedings held before the Corporation Commission, as
well as hearings before administrative law judges.
Types transcriptions of the recordings and maintains
files of transcripts and exhibits. Maintains complete records of hearing dockets before all courts of the commission. Prepares case-made records of testimony,
pleadings, exhibits and all evidence filed and introduced for appeal to the Oklahoma Supreme Court, as
well as federal commissions. Salary is statute-based.
Interested applicants should visit the OCC website
at www.occeweb.com/HR/Jobs.htm or contact Pat
Walters at 405-522-2220.
ATTORNEY POSITION. Established sole practitioner
in Moore looking for associate to provide support in
areas of family law, probate, guardianship, bankruptcy, litigation and other areas. Competitive salary
based on experience, flexible hours, health and dental
insurance. Of-counsel or office share also possible. Relaxed, family focused, fully furnished office in historic
downtown building with lots of character. Resume,
writing sample and references should be submitted to
[email protected]
SOUTH TULSA LAW FIRM SEEKS A LEGAL ASSISTANT TO SUPPORT MULTIPLE ATTORNEYS. Responsibilities include preparing letters/pleadings, dictation,
scheduling, docketing and phone relief for receptionist.
Please submit resume and salary requirements to [email protected]
csmlawgroup.com. No phone calls please.
Vol. 87 — No. 17 — 6/25/2016
Make a Difference
“America is the land of the second chance - and when
the gates of the prison open, the path ahead should
lead to a better life.” George W. Bush
Do you want a fulfilling career where you can really
make a difference in the lives of people? Are you
fervent about equal justice? Does a program with a
purpose motivate you? Legal Aid Services of
Oklahoma, Inc. (LASO) is searching for an attorney
who truly wants justice for ALL.
Legal Aid Services of Oklahoma has partnered with
Muscogee Creek Nation, in Marietta, OK, to provide
a path for those who have been incarcerated to
re-enter society. The successful individual will have
the unique opportunity to work within civil laws to
effect criminal outcomes. Re-entry lawyers get to
work in every area of the law from housing, to
consumer, to family, to social security. This position
makes a real difference in the lives of those who are
vulnerable and oppressed due to their criminal
records. In return, the employee receives a great
benefit package including paid health, dental, life
insurance plan, a pension and generous leave
benefits. Additionally, LASO offers a great work
environment and educational/career opportunities.
Legal Aid is looking for attorneys who are passionate
about victims’ rights.
There are a number of openings throughout the state
for Victims’ Rights Staff Attorney. To start making a
difference, complete our application and submit it to
Legal Aid Services of Oklahoma.
The online application can be found:
legalaidokemployment.wufoo.com/forms/z7x4z5/
Print application
www.legalaidok.orgdocuments/388541Employment_
Application_Revised_10.2008.pdf
Legal Aid is an Equal Opportunity/Affirmative
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THE LAW OFFICE OF MICHAEL H. GITHENS, STAFF
COUNSEL FOR GEICO INSURANCE, IS LOOKING
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litigation, insurance defense or personal injury. The applicant must be admitted to practice in the state of
Oklahoma and be willing to travel throughout the state.
Good organizational, communication and computer
skills are required. Interested applicants should go to
GEICO.com and search careers for Oklahoma Staff
Counsel Position. Submit an application and resume.
The Oklahoma Bar Journal
1277
POSITIONS AVAILABLE
Make a Difference
POSITIONS AVAILABLE
Do you want a fulfilling career where you can really
make a difference in the lives of people? Are you
fervent about equal justice? Does a program with a
purpose motivate you? Legal Aid Services of
Oklahoma, Inc. (LASO) is searching for an attorney
for its Oklahoma City law office to be the pro bono
coordinator.
We are a statewide, civil law firm providing legal
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justice.
The successful individual will have a passion for
justice and empathy for impoverished individuals,
computer literate and willingness to learn and
contribute to a positive work environment. The
individual will have a great relationship with the
Oklahoma County Bar Association and its membership. In return, the employee receives a great benefit
package including paid health, dental, life insurance
plan, a pension and generous leave benefits.
Additionally, LASO offers a great work environment and educational/career opportunities.
To start making a difference you MUST complete
our application and submit it to Legal Aid Services
of Oklahoma.
The online application can be found:
legalaidokemployment.wufoo.com/forms/z7x4z5/
Print application
www.legalaidok.org/
documents/388541Employment_Application_
Revised_10.2008.pdf
Legal Aid is an Equal Opportunity/Affirmative
Action Employer.
SOUTH OKLAHOMA CITY LAW FIRM SEEKING
FAMILY LAW ATTORNEY to handle referrals in family/domestic law. Applicant should also have established practice and experience. Beautiful office with all
amenities. Attorney fee/overhead on percentage basis.
Submit resume to “Box AB,” Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, OK 73152.
THE BUREAU OF INDIAN AFFAIRS, EASTERN OKLAHOMA REGION, MIAMI AGENCY, LOCATED IN MIAMI, OKLAHOMA, has a need for a public defender for
fiscal year 2017. Potential contractors must be a member
of the Oklahoma Bar Association with experience in CFR
courts, federal laws, federal codes, 25 CFR Part 11, CFR
courts regulations, and tribal laws of the six tribes within
the court’s jurisdiction. This opportunity will be a firm
fixed price contract with one base year and 4 option
years. If you are interestedin possibly fulfilling this
requirement please go to FedBizOpps at FBO.gov or
FedConnect at Fedconnect.net and search reference/
solicitation number A16PS00635.
CLASSIFIED INFORMATION
REGULAR CLASSIFIED ADS: $1.25 per word with $35 minimum per insertion. Additional $15 for blind box. Blind box
word count must include “Box ___,” Oklahoma Bar Association, PO Box 53036, Oklahoma City, OK 73152.”
DISPLAY CLASSIFIED ADS: Bold headline, centered, border
are $60 per inch of depth.
DEADLINE: See www.okbar.org/members/BarJournal/
advertising.aspx or call 405-416-7084 for deadlines.
SEND AD (email preferred) stating number of times to be
published to:
[email protected], or
Mackenzie McDaniel, Oklahoma Bar Association,
PO Box 53036, Oklahoma City, OK 73152.
Publication and contents of any advertisement are 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 nondiscriminatory.
DO NOT STAPLE BLIND BOX APPLICATIONS.
1278
The Oklahoma Bar Journal
Vol. 87 — No. 17 — 6/25/2016
Vol. 87 — No. 17 — 6/25/2016
The Oklahoma Bar Journal
1279

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