Vol 85 No 34 (Dec 20) - Oklahoma Bar Association

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Volume 85 u No. 34 u Dec. 20, 2014
2666
The Oklahoma Bar Journal
Vol. 85 — No. 34 — 12/20/2014
OFFICERS & BOARD OF GOVERNORS
Renée DeMoss, President, Tulsa
David A. Poarch Jr., President-Elect, Norman
Susan S. Shields, Vice-President, Oklahoma City
James T. Stuart, Immediate Past President, Shawnee
Deirdre O’Neil Dexter, Sand Springs
Robert D. Gifford II, Oklahoma City
Kimberly Hays, Tulsa
Douglas L. Jackson, Enid
John W. Kinslow, Lawton
Rickey J. Knighton, Norman
James R. Marshall, Shawnee
Nancy S. Parrott, Oklahoma City
Kevin T. Sain, Idabel
Bret A. Smith, Muskogee
Richard D. Stevens, Norman
Linda S. Thomas, Bartlesville
Kaleb Hennigh, Enid
Chairperson, OBA/Young Lawyers Division
events Calendar
DECEMBER 2014
24-26 OBA closed – Christmas observed
JANUARY 2015
1-2
6
OBA Government and Administrative Law Practice Section
meeting; 4 p.m.; Oklahoma Bar Center, Oklahoma City with teleconference;
Contact Scott Boughton 405-717-8957
8
OBA Mock Trial Committee meeting; 5:30 p.m.; Oklahoma Bar Center,
Oklahoma City with teleconference; Contact Judy Spencer 405-755-1066
9
OBA Law-related Education Committee meeting; 12 p.m.; Oklahoma
Bar Center, Oklahoma City with teleconference; Contact Suzanne Heggy
405-556-9612
OBA Family Law Section meeting; 3 p.m.; Oklahoma Bar Center,
Oklahoma City with OSU Tulsa, Tulsa; Contact M. Shane Henry 918-585-1107
15
Supreme Court Swearing In Ceremony; 1:30 p.m.; Supreme Court
Courtroom, State Capitol, Oklahoma City; Contact Office of the Chief Justice,
405-556-9100
OBA Board of Governors meeting; 3 p.m.; Oklahoma Bar Center,
Oklahoma City; Contact John Morris Williams 405-416-7000
OBA Young Lawyers Division Kick it Forward meeting; 4 p.m.;
Oklahoma Bar Center, Oklahoma City; Contact Kaleb Hennigh 580-234-4334
16
OBA Board of Bar Examiners meeting; 9 a.m.; Oklahoma Bar Center,
Oklahoma City; Contact Oklahoma Board of Bar Examiners 405-416-7075
OBA Board of Governors meeting; 9:30 a.m.; Oklahoma Bar Center,
Oklahoma City; Contact John Morris Williams 405-416-7000
OBA Alternative Dispute Resolution Section meeting; 12 p.m.;
Oklahoma Bar Center, Oklahoma City with OSU Tulsa, Tulsa; Contact
Jeffrey Love 405-286-9191
19
OBA Closed-Martin Luther King, Jr. Day Observed
BAR Center Staff
John Morris Williams, Executive Director;
Gina L. Hendryx, General Counsel; Jim Calloway,
Director of Management Assistance Program;
Craig D. Combs, Director of Administration;
Susan Damron Krug, Director of Educational
Programs; Beverly Petry Lewis, Administrator
MCLE Commission; Carol A. Manning, Director
of Communications; Travis Pickens, Ethics Counsel;
Robbin Watson, Director of Information Technology;
Jane McConnell, Coordinator Law-related Education;
Loraine Dillinder Farabow, Tommy Humphries,
Debbie Maddox, Katherine Ogden, Steve Sullins,
Assistant General Counsels; Tanner Condley,
Sharon Orth, William Thames and
Krystal Willis, Investigators
Manni Arzola, Debbie Brink, Laura Brown,
Emily Buchanan, Susan Carey, Nickie Day,
Dieadra Florence, Johnny Marie Floyd, Matt
Gayle, Brandon Haynie, Suzi Hendrix, Misty Hill,
Debra Jenkins, Durrel Lattimore, Heidi McComb,
Renee Montgomery, Larry Quinn, Lori Rasmussen, Wanda F. Reece, Tracy Sanders, Mark Schneidewent, Jan Thompson & Roberta Yarbrough
EDITORIAL BOARD
Editor in Chief, John Morris Williams; News &
Layout Editor, Carol A. Manning; Editor,
Melissa DeLacerda, Stillwater; Associate Editors:
Dietmar K. Caudle, Lawton; Emily Duensing,
Tulsa; Erin Means, Moore; Shannon Lee Prescott,
Okmulgee; Mark Ramsey, Claremore; Judge
Megan Simpson, Buffalo; Leslie Taylor, Ada;
Judge Allen J. Welch, Oklahoma City;
January Windrix, Poteau
NOTICE of change of address (which must be
in writing and signed by the OBA member),
undeliverable copies, orders for subscriptions
or ads, news stories, articles and all mail items
should be sent to the Oklahoma Bar Association,
P.O. Box 53036, Oklahoma City, OK 73152-3036.
Oklahoma Bar Association 405-416-7000
Toll Free 800-522-8065 FAX 405-416-7001
Continuing Legal Education 405-416-7029
Ethics Counsel 405-416-7055
General Counsel 405-416-7007
Law-related Education 405-416-7005
Lawyers Helping Lawyers 800-364-7886
Mgmt. Assistance Program 405-416-7008
Mandatory CLE 405-416-7009
OBJ & Communications 405-416-7004
Board of Bar Examiners 405-416-7075
Oklahoma Bar Foundation 405-416-7070
Vol. 85 — No. 34 — 12/20/2014
OBA closed- New Year’s Day observed
For more events go to www.okbar.org/calendar
The Oklahoma Bar Association’s official website:
www.okbar.org
THE OKLAHOMA BAR JOURNAL is a publication of the Oklahoma Bar
Association. All rights reserved. Copyright© 2014
2008 Oklahoma Bar Association.
The design of the scales and the “Oklahoma Bar Association” encircling the
scales are trademarks of the Oklahoma Bar Association. Legal articles carried
in THE OKLAHOMA BAR JOURNAL are selected by the Board of Editors.
The Oklahoma Bar Journal (ISSN 0030-1655) is published three times
a month in january, February, March, April, May, August, September, October, November and December and bimonthly in June and
July. by
July
by the
the Oklahoma
Oklahoma Bar Association, 1901 N. Lincoln Boulevard,
Oklahoma City, Oklahoma 73105. Periodicals postage paid at Oklahoma City, OK. POSTMASTER: Send address changes to THE OKLAHOMA
BAR ASSOCIATION, P.O. Box 53036, Oklahoma City, OK 73152-3036. Subscriptions are $60
$55 per year except for law students registered with the
Oklahoma Bar Association, who may subscribe for $25. Active member subscriptions are included as a portion of annual dues. Any
opinion expressed herein is that of the author and not necessarily that of the Oklahoma Bar Association, or the Oklahoma Bar
Journal Board of Editors.
The Oklahoma Bar Journal
2667
2668
The Oklahoma Bar Journal
Vol. 85 — No. 34 — 12/20/2014
Oklahoma Bar Association
table of
contents
Dec. 20, 2014 • Vol. 85 • No. 34
page
2667 Events Calendar
2670 Index to Court Opinions
2671Supreme Court Opinions
2700Court of Criminal Appeals Opinions
2705Disposition of Cases Other Than by Publication
Vol. 85 — No. 34 — 12/20/2014
The Oklahoma Bar Journal
2669
Index to Opinions of Supreme Court
2014 OK 99 STATE OF OKLAHOMA ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. JAY ERIC TRENARY, Respondent. SCBD No. 6187................................................. 2671
2014 OK 100 IN RE: AMENDMENTS TO THE OKLAHOMA UNIFORM JURY INSTRUCTIONS - CIVIL S.C.A.D. No. 2014-79.............................................................................................. 2671
2014 OK 101 LADONNA STEWART, Plaintiff/Appellee, v. MERCY HEALTH CENTER,
INC., Defendant/Appellants. No. 113,237..................................................................................... 2677
2014 OK 102 MELODY JOHNSON, as next of kin of ARDA LEE CHURCHILL, Deceased,
Appellee, v. CONVALESCENT CENTER OF GRADY COUNTY, LLC d/b/a GRACE
LIVING CENTER - CHICKASHA, STILLGRADY, LLC, AMITY CARE, LLC, MIKE
DIMOND, DON GREINER, INDIVIDUALLY AND d/b/a DON GREINER, TRUSTEE, KENNETH D. GREINER III REVOCABLE TRUST d/b/a DON GREINER
TRUST, DON GREINER, BENEFICIARY/TRUSTEE, Appellants. No. 111,922....................... 2678
2014 OK 103 STATE OF OKLAHOMA ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. BLAKE RODMAN GIVENS, Respondent. SCBD No. 6153.................................... 2681
2014 OK 104 STATE OF OKLAHOMA ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. SAM GEORGE CAPORAL, Respondent. SCBD No. 6111...................................... 2685
2014 OK 105 JERRY F. FENT, as a resident taxpayer, of the State of Oklahoma, and all
other similar persons, Petitioner, v. MARY FALLIN, Governor of the State of Oklahoma, Respondent. No. 112,867....................................................................................................... 2686
2014 OK 106 TRINITY BAPTIST CHURCH, Plaintiff/Appellant, v. BROTHERHOOD
MUTUAL INSURANCE SERVICES, LLC, Defendant, and SOONER CLAIMS SERVICES, INC., Defendant/Appellee. No. 113,072........................................................................... 2689
Index to Opinions of Court of Criminal Appeals
2014 OK CR 17 STATE OF OKLAHOMA, Appellant, v. LAMONT EUGENE HURT,
Appellee. Case No. S-2013-476......................................................................................................... 2700
2670
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Vol. 85 — No. 34 — 12/20/2014
Supreme Court Opinions
Manner and Form of Opinions in the Appellate Courts;
See Rule 1.200, Rules — Okla. Sup. Ct. R., 12 O.S. Supp. 1996 (1997 T. 12 Special Supplement)
2014 OK 99
STATE OF OKLAHOMA ex rel.
OKLAHOMA BAR ASSOCIATION,
Complainant, v. JAY ERIC TRENARY,
Respondent.
SCBD No. 6187. November 24, 2014
ORDER OF IMMEDIATE INTERIM
SUSPENSION
¶1 The Oklahoma Bar Association (OBA), in
compliance with Rule 7.1 and 7.2 of the Rules
Governing Disciplinary Proceedings (RGDP),
has provided this Court with certified copies of
the Criminal Information and Deferment in
which Jay Eric Trenary entered a guilty plea to
one count of Obstructing an Officer and one
count of Disturbing the Peace, a violation of
Okla. Stat. Tit. 21, §§ 540 and 1362, respectively.
¶2 Rule 7.3 of the RGDP provides: “Upon
receipt of the certified copies of Judgment and
Sentence on a plea of guilty, order deferring
judgment and sentence, indictment or information and the judgment and sentence, the
Supreme Court shall by order immediately
suspend the lawyer from the practice of law
until further order of the Court.” Having received certified copies of these papers and
order, this Court orders that Jay Eric Trenary is
immediately suspended from the practice of
law. Jay Eric Trenary is directed to show cause,
if any, no later than December 1, 2014, why this
order of interim suspension should be set
aside. See RGDP Rule 7.3. The OBA has until
December 8, 2014, to respond to Jay Eric Trenary should one be filed.
¶3 Rule 7.2 of the RGDP provides that a certified copy of a plea of guilty, an order deferring
judgment and sentence, or information and
judgment and sentence of conviction “shall
constitute the charge and be conclusive evidence of the commission of the crime upon
which the judgment and sentence is based and
shall suffice as the basis for discipline in accordance with these rules.” Pursuant to Rule 7.4 of
the RGDP, Jay Eric Trenary has until December
Vol. 85 — No. 34 — 12/20/2014
8, 2014, to show cause in writing why a final
order of discipline should not be imposed, to
request a hearing, or to file a brief and any evidence tending to mitigate the severity of discipline. The OBA has until December 15, 2014, to
respond.
DONE BY ORDER OF THE SUPREME
COURT this 24th day of November, 2014.
/s/ Tom Colbert
CHIEF JUSTICE
¶4 ALL JUSTICES CONCUR
2014 OK 100
IN RE: AMENDMENTS TO THE
OKLAHOMA UNIFORM JURY
INSTRUCTIONS - CIVIL
S.C.A.D. No. 2014-79. November 24, 2014
ORDER ADOPTING SUPPLEMENTAL
OKLAHOMA UNIFORM JURY
INSTRUCTIONS - CIVIL
¶1 The Court has reviewed the recommendations of the Oklahoma Supreme Court Committee for Uniform Civil Jury Instructions to
adopt several new proposed jury instructions.
The Court finds that the instructions should be
adopted as modified by the Court.
¶2 It is therefore ordered, adjudged and
decreed that the revisions to the Instructions
shall be available for access via internet from
the Court website at www.oscn.net and provided to West Publishing Company for publication. The Administrative Office of the Courts
is requested to notify the judges of the District
Courts of the supplemental instructions set
forth herein. Further, the District Courts of the
State of Oklahoma are directed to implement
these supplemental instructions effective thirty
(30) days from the date of this Order.
¶ 3 It is therefore ordered, adjudged and
decreed that the adoption of proposed new
Instructions, as set out and attached to this
Order, are hereby adopted: Instruction Nos. 1,
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2671
28.11, 28.12, 28.13, 28.14, 28.15, 28.16, 30.1, 30.2,
30.3, 30.4.
¶ 4 The Court also accepts and authorizes the
updated Committee’s comments, as modified
by the Court, to be published, together with
the above-referenced revisions and each
amended page in the revisions to be noted at
the bottom thereof as follows (Nov. 2014 Supp.).
¶ 5 As it did so previously, the Court today
declines to relinquish its constitutional or statutory authority to review the legal correctness
of these authorized Instructions when it is
called upon to afford corrective relief in any
adjudicative context.
¶ 6 These amended Instructions shall be
effective thirty (30) days from the date this
Order is filed with the Clerk of this Court.
DONE BY ORDER OF THE SUPREME
COURT IN CONFERENCE THE 24th DAY
OF NOVEMBER, 2014.
/s/ Tom Colbert
CHIEF JUSTICE
This Instruction should be given as soon
as the case is called in the presence of the
jury. The trial judge may also distribute
hard copies of this Instruction to the jurors.
CHAPTER TWENTY EIGHT
Defamation and Invasion of Privacy
List Of Contents
Instruction No. 28.1 Defamation - Introductory Instruction
Instruction No. 28.2 Defamation - Elements
(Public Figure Plaintiff)
Instruction No. 28.3 Defamation - Elements
(Private Figure Plaintiff)
Instruction No. 28.4 Defamation - Affirmative Defense of Fair Comment
Instruction No. 28.5 Defamation - Affirmative Defense of Fair Reporting
Instruction No. 28.6 Defamation - Affirmative Defense of Good Faith
Instruction No. 28.7 Defamation - Affirmative Defense for Statement Made by Another
Person
ALL JUSTICES CONCUR
Instruction No. 1.0
Use of Electronic Devices and Research
Prohibited
At this time, turn off all cell phones and other
electronic devices. Do not use any electronic
devices while court is in session in this case.
Do not use any electronic device or media,
such as the telephone, a cell or smart phone,
camera, recording device, Blackberry, PDA,
computer, the Internet, any Internet service,
any text or instant messaging service, any
Internet chat room, blog, or website such as
Facebook, MySpace, YouTube, or Twitter, or
any other way to find out any information
about this case or the parties or attorneys.
It is very important that you abide by these
instructions because it is essential that you keep
your minds free and open at all times throughout this trial and that you not be influenced by
anything except the evidence you hear and see
in the courtroom. Failure to follow these instructions could result in the case having to be retried,
and you will be in violation of your oath and the
court’s order, which may result in your being
fined, put in jail, or both.
2672
Notes on Use
Instruction No. 28.8 Defamation - Affirmative Defense of Qualified Privilege
Instruction No. 28.9 Defamation -Measure of
Damages
Instruction No. 28.11 Invasion of Privacy Introductory Instruction
Instruction No. 28.12 Invasion of Privacy Elements (Intrusion Upon Seclusion)
Instruction No. 28.13 Invasion of Privacy - Elements (Appropriation of Right of Publicity)
Instruction No. 28.14 Invasion of Privacy Elements (Publication of Private Facts)
Instruction No. 28.15 Invasion of Privacy Elements (False Light)
Instruction No. 28.16 Invasion of Privacy Measure of Damages
Instruction 28.11
Invasion of Privacy - Introductory
Instruction
This is an action to recover damages for invasion of privacy. [Plaintiff] claims that [specify
the facts that the plaintiff alleges constituted
the invasion of privacy: e.g., [Defendant]
The Oklahoma Bar Journal
Vol. 85 — No. 34 — 12/20/2014
unreasonably placed [Plaintiff] in a false light
before the public]].
Invasion of Privacy - Elements (Intrusion
Upon Seclusion)
Notes on Use
In order to recover for invasion of privacy,
[Plaintiff] has the burden of proving the following elements by the greater weight of the
evidence:
This instruction should be used to introduce the remaining instructions on invasion of privacy in this Chapter.
Comments
In McCormack v Oklahoma Pub. Co., 1980
OK 98, ¶ 8, 613 P.2d 737, 740, the Oklahoma
Supreme Court recognized the tort of invasion of privacy in the four categories set
out in Restatement (Second) of Torts §
652A (1977).
Restatement (Second) of Torts § 652A
(1977) provides:
(1) One who invades the right of privacy of
another is subject to liability for the resulting harm to the interests of the other.
(2) The right of privacy is invaded by
(a) unreasonable intrusion upon the
seclusion of another, as stated in § 652B; or
(b) appropriation of the other’s name or
likeness, as stated in § 652C; or
1. [Defendant] intentionally intruded upon
the privacy/(private affairs)/ (private concerns) of [Plaintiff];
2. Without the consent of [Plaintiff]; and
3. The intrusion was highly offensive to a
reasonable person.
Comments
The Oklahoma Supreme Court stated in
Gilmore v. Enogex, Inc., 1994 OK 76, ¶ 16, 878
P.2d 360, 366:
Oklahoma recognizes the common-law
tort of invasion of privacy by intrusion
upon one’s seclusion. In order to prevail on
this claim, Gilmore had to prove the two
elements of that tort: (a) a nonconsensual
intrusion (b) which was highly offensive to
a reasonable person.
Instruction 28.13
(c) unreasonable publicity given to the
other’s private life, as stated in § 652D; or
Invasion of Privacy - Elements
(Appropriation of Right of Publicity)
(d) publicity that unreasonably places
the other in a false light before the public,
as stated in § 652E.
In order to recover for invasion of privacy,
[Plaintiff] has the burden of proving the following elements by the greater weight of the
evidence:
Both absolute and conditional privileges
from the law of defamation may apply to
claims for invasion of privacy that involve
publication.
Restatement (Second) of Torts § 652F
(1977) provides:
The rules on absolute privileges to publish defamatory matter stated in §§ 583 to
592A apply to the publication of any matter
that is an invasion of privacy.
Restatement (Second) of Torts § 652G
(1977) provides:
The rules on conditional privileges to
publish defamatory matter stated in §§ 594
to 598A, and on the special privileges stated in §§ 611 and 612, apply to the publication of any matter that is an invasion of
privacy.
Instruction 28.12
Vol. 85 — No. 34 — 12/20/2014
1. [Defendant] knowingly used the name/
voice/signature/photograph/ likeness;
2. On/In products/merchandise/goods;
3. Without the consent of [Plaintiff].
Comments
The right of publicity is protected both by the
tort of invasion of privacy recognized in McCormack v Oklahoma Pub. Co., 1980 OK 98, ¶ 3, 613
P.2d 737, 739, and 12 O.S. 2011, § 1449(A),
which provides:
Any person who knowingly uses another’s name, voice, signature, photograph, or
likeness, in any manner, on or in products,
merchandise, or goods, or for purposes of
advertising or selling, or soliciting purchases of, products, merchandise, goods,
or services, without such person’s prior
consent, or, in the case of a minor, the prior
The Oklahoma Bar Journal
2673
consent of his parent or legal guardian,
shall be liable for any damages sustained
by the person or persons injured as a result
thereof, and any profits from the unauthorized use that are attributable to the use
shall be taken into account in computing
the actual damages. In establishing such
profits, the injured party or parties are
required to present proof only of the gross
revenue attributable to such use, and the
person who violated this section is required
to prove his or her deductible expenses.
Punitive damages may also be awarded to
the injured party or parties. The prevailing
party in any action under this section shall
also be entitled to attorney’s fees and costs.
The Oklahoma Court of Civil Appeals summarized the elements of a statutory right of
publicity claim in Brill v. the Walt Disney Co.,
2010 OK CIV APP 132, ¶ 10, 246 P.3d 1099,
1103-04 (footnote omitted), as follows:
In order to establish a prima facie case of
statutory violation of the right of publicity,
a plaintiff must plead facts establishing the
three elements of the claim: (1) Defendants
knowingly used Brill’s name or likeness,
(2) on products, merchandise or goods, (3)
without Brill’s prior consent. Just as under
the Restatement, the statute only concerns
the use of another person’s name, voice,
signature, photograph or likeness, not the
name, photograph or likeness of another
person’s car.
Instruction 28.14
Invasion of Privacy - Elements (Publication
of Private Facts)
In order to recover for invasion of privacy,
[Plaintiff] has the burden of proving the following elements by the greater weight of the
evidence:
1. [Defendant] made a public statement/disclosure/announcement/ declaration;
2. Of private facts;
One who gives publicity to a matter concerning the private life of another is subject
to liability to the other for invasion of his
privacy, if the matter publicized is of a kind
that
(a) would be highly offensive to a reasonable person, and
(b) is not of legitimate concern to the
public.
The Oklahoma Supreme Court specified the
elements of a claim for invasion of privacy by
publication of private facts in Guinn v. Church
of Christ of Collinsville, 1989 OK 8, ¶ 41, 775 P.2d
766, 781, as follows:
In order to prevail on her claim for invasion of privacy by publication of private
facts, Parishioner had to prove the four elements of that tort. She had the burden of
showing that the Elders’ statements (1)
were highly offensive to a reasonable person, (2) contained private facts about
Parishioner’s life, (3) were a public disclosure of private facts and (4) were not of
legitimate concern to the Church of Christ
congregation.
Similarly, the Oklahoma Supreme Court set
out the elements in Eddy v. Brown, 1986 OK 3, ¶
11, 715 P.2d 74, 77, as follows: “Unreasonable
publicity of the private life of another is a tort
with three constituent elements: [1] publicity
[2] which is unreasonable and [3] is given as
private fact.”
Instruction 28.15
Invasion of Privacy - Elements (False Light)
In order to recover for invasion of privacy,
[Plaintiff] has the burden of proving the following elements by the greater weight of the
evidence:
1. [Defendant] made a public [statement/
disclosure/announcement/ declaration] about
[Plaintiff];
2. That placed [Plaintiff] in a false light
before the public;
3. That were highly offensive to a reasonable
person; and
3. The false light was highly offensive to a
reasonable person; and
4. Were not of legitimate concern to the public.
4. [Defendant] either knew the public [statement/disclosure/ announcement/declaration]
was false and would place [Plaintiff] in a false
light, or [Defendant] had serious doubt as to
whether the public [statement/disclosure/
Comments
Restatement (Second) of Torts § 652D
(1977) provides:
2674
The Oklahoma Bar Journal
Vol. 85 — No. 34 — 12/20/2014
announcement/declaration] was true or false
and would place [Plaintiff] in a false light.
3. Personal humiliation; and
Comments
Restatement (Second) of Torts § 652E
(1977) provides:
One who gives publicity to a matter concerning another that places the other before
the public in a false light is subject to liability
to the other for invasion of his privacy, if
(a) the false light in which the other was
placed would be highly offensive to a reasonable person, and
(b) the actor had knowledge of or acted
in reckless disregard as to the falsity of the
publicized matter and the false light in
which the other would be placed.
In Colbert v. World Pub. Co., 1987 OK 116, ¶ 15,
747 P.2d 286, 292, the Oklahoma Supreme
Court decided that a standard of knowing or
reckless conduct was required for false light
invasion of privacy.
Instruction 28.16
Invasion of Privacy - Measure of Damages
If you decide for Plaintiff [name], you must
then fix the amount of his/her damages. This is
the amount of money that will reasonably and
fairly compensate him/her for the injury sustained as a result of the invasion of privacy by
Defendant [name].
In fixing the amount you will award him/her
you may consider the following elements:
1. Financial losses, such as loss of earnings/
profits;
2. The harm caused by the intrusion to privacy;
3. Personal humiliation; and
4. Mental anguish and suffering.
OR
1. Financial losses, such as loss of earnings/
profits; and
2. The value of the loss of the exclusive use of
the name/voice/signature/photograph/likeness of Plaintiff, [name]);
OR
1. Financial losses, such as loss of earnings/
profits;
Vol. 85 — No. 34 — 12/20/2014
2. Injury to standing and reputation in the
community;
4. Mental anguish and suffering.
Note on Use
The court should select the appropriate measure for damages based upon the nature of the
invasion of privacy. The first alternative should
be used for intrusion upon solitude along with
Instruction 28.12, supra. The second alternative
should be used for appropriation of a right of
publicity claim along with Instruction 28.13,
supra. The third alternative should be used for
publication of private facts or a false light claim
along with Instruction 28.14 or 28.15, supra.
Committee Comments
Restatement (Second) of Torts § 652H
(1977) provides:
One who has established a cause of action
for invasion of his privacy is entitled to
recover damages for
(a) the harm to his interest in privacy
resulting from the invasion;
(b) his mental distress proved to have
been suffered if it is of a kind that normally
results from such an invasion; and
(c) special damage of which the invasion
is a legal cause.
Comment a to § 652H states:
A cause of action for invasion of privacy,
in any of its four forms, entitles the plaintiff
to recover damages for the harm to the
particular element of his privacy that is
invaded. Thus one who suffers an intrusion upon his solitude or seclusion, under
§ 652B, may recover damages for the deprivation of his seclusion. One whose name,
likeness or identity is appropriated to the
use of another, under § 652C, may recover
for the loss of the exclusive use of the value
so appropriated. One to whose private life
publicity is given, under § 652D, may
recover for the harm resulting to his reputation from the publicity. One who is publicly placed in a false light, under § 652E,
may recover damages for the harm to his
reputation from the position in which he is
placed.
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2675
Accordingly, the damages instruction in
Instruction 28.16 should be tailored to fit the
appropriate type of invasion of privacy.
CHAPTER THIRTY
Residential Real Property Condition
Disclosure Act
List Of Contents
Instruction No. 30.1 Residential Real Property - Introduction
Instruction No. 30.2 Residential Real Property - Definition of Defect
Instruction No. 30.3 Residential Real Property - Elements
Instruction No. 30.4 Residential Real Property- Measure of Damages
Instruction No. 30.1
Residential Real Property — Introduction
Before making the contract for the sale of
residential real estate in this case, the seller was
required to deliver to the buyer a property condition disclosure statement as to whether the
seller had actual knowledge of defects or information in relation to [specify nature of property defects the Plaintiff alleges were not
identified].
Committee Comments
Under 60 O.S. 2011, § 833, a seller (as
defined in id., § 832(2)) of residential real
estate is required to deliver to a purchaser
either a written property disclaimer statement or written property disclosure statement of whether the seller has actual
knowledge of defects or information in
relating to the real estate as well as various
notices. The property disclaimer statement
or property disclosure is required before
acceptance of an offer to purchase the
property. Id. § 834.
Instruction No. 30.2
Residential Real Property — Definition
of Defect
A “defect” is a condition, malfunction or
problem that would have a materially adverse
effect on the monetary value of the property, or
that would impair the health or safety of future
occupants of the property.
2676
Committee Comments
See 60 O.S. 2011 § 832(9). A disclosure of a
property’s square footage is not required
under the Residential Property Condition
Disclosure Act, because it is not a “defect” as
defined in § 832(9). Lopez v. Rollins, 2013 OK
CIV APP 43, ¶ 11, 303 P.3d 911, 916.
Instruction No. 30.3
Residential Real Property -- Elements
Plaintiff [name] claims that Defendant
[name] has failed to disclose a defect or defects
in the residence that was actually known to
Defendant [name] before the acceptance of the
offer of Plaintiff [name] to purchase the residence. In order to recover on the claim for failure
to disclose a defect or defects in the residence,
Plaintiff [name] has the burden of proving the
following elements by the greater weight of the
evidence:
1. A material defect or defects existed in the
residence;
2. Defendant [name] failed to disclose the
defect or defects in the residence to Plaintiff
[name] in a written disclosure statement [or an
amended disclosure statement];
3. Defendant [name] had actual knowledge
of the defect or defects before the acceptance of
the offer to purchase the residence; and
4. Plaintiff [name] suffered damages.
Instruction No. 30.4
Residential Real Property — Measure of
Damages
A seller who fails to disclose a defect or
defects in a property disclosure statement is
liable for damages to the purchaser. If you
decide that Defendant [name] failed to disclose
a defect or defects in a property disclosure
statement, you must then fix the amount of
damages that Plaintiff [name] may recover.
This is the amount of money that will reasonably and fairly compensate [him/her] for the
actual damages sustained as a result of the
defect or defects, including the cost of repairing the defect or defects.
Committee Comments
Under 60 O.S. 2011 § 837(B), the exclusive remedy for failure to disclose a defect
in a property disclosure statement is the
“actual damages, including the cost of
The Oklahoma Bar Journal
Vol. 85 — No. 34 — 12/20/2014
repairing the defect, suffered by the purchaser as a result of a defect existing in the
property as of the date of acceptance by the
seller of an offer to purchase.” White v. Lim,
2009 OK 79, ¶ 17, 224 P.3d 679, 685
(“Instructed by the Legislature’s declared
intent, we hold that the mandatory, clear,
and unmistakable language of 60 O.S.
Supp. 2003 §837 limits the right of a purchaser to recover for failure to disclose
known defects in residential property to
those provided in the Disclosure Act.”).
2014 OK 101
LADONNA STEWART, Plaintiff/Appellee, v.
MERCY HEALTH CENTER, INC.,
Defendant/Appellants.
No. 113,237. November 25, 2014
MEMORANDUM OPINION
PER CURIAM:
¶1 On February 11, 2014, the plaintiff/appellee, Ladonna Stewart (Stewart/employee),
filed suit against the defendant/appellants,
Mercy Health Center, Inc. (Mercy/employer),
in district court. Stewart alleged that Mercy
had acted in bad faith in refusing to provide
benefits previously ordered by the Workers’
Compensation Court. Mercy filed a motion to
dismiss on March 12, 2014, alleging that Stewart failed to comply with the jurisdictional
requirement of obtaining a certification or
order from the Workers’ Compensation Court
that the employer failed to provide the employee with benefits previously ordered by that
tribunal.1
¶2 The trial court refused to dismiss the
cause from the bench in April with the order
being filed on July 18, 2014. Mercy filed a
motion for reconsideration or in the alternative
for an order certifying an immediate appeal. On
August 29, 2014, the trial court denied the
employer’s motion for reconsideration but
granted the request for an order certifying an
immediate interlocutory appeal. The Petition for
Certiorari was filed on September 26, 2014. The
Response shows a file stamp of October 7th.
¶3 In consideration of the above recounted
and undisputed facts, WE DETERMINE:
1)Certiorari should be granted.
2)The sole issue presented is whether the
district court has jurisdiction to proceed
in the instant cause. The question is one of
Vol. 85 — No. 34 — 12/20/2014
law subject to this Court’s de novo review.
Samson Resources Co. v. Newfield Exploration Mid-Continent, Inc., 2012 OK 68,
¶10, 281 P.3d 1278; Rogers v. Quiktrip
Corp., 2010 OK 3, ¶4, 230 P.3d 853.
3)The employee does not contend, in the
response to the Petition for Certiorari,
that she obtained a certification or other
order complying with 85 O.S. Supp. 2014
§79 before filing the bad faith claim in
district court.
4)Our jurisprudence makes it clear that failure to obtain an order of the Workers’
Compensation Court certifying the award
as unpaid is a jurisdictional requirement
to filing a bad faith claim for failure to
pay benefits in the district court. Sizemore v. Continental Casualty Co., 2006
OK 36, ¶26, 142 P.3d 36. See also, Summers v. Zurich American Ins. Co., 2009
OK 33, ¶¶12-15, 213 P.3d 565
5)
The nature of this cause, presenting a
pure issue of law on a jurisdictional issue
which is guided by well-established jurisprudence on an undisputed fact, i.e. the
lack of a certified order from the Workers’
Compensation Court, makes the preparation of a record2 and the filing of briefs3 a
waste of the parties’ time and attorney
fees and of judicial resources.
6)The trial court should dismiss the cause
without prejudice, giving the employee
an opportunity to correct the jurisdictional defect presently existing.
¶4 The cause is remanded to the district
court for the dismissal of the cause in accordance with the directions contained herein.
REVERSED AND REMANDED.
COLBERT, C.J., REIF, V.C.J., KAUGER, WATT,
WINCHESTER, EDMONDSON, COMBS,
GURICH, JJ. - concur.
TAYLOR, J. - concurs in result.
PER CURIAM:
1. The employee’s argument that case law construing this requirement, formerly contained in §42 of title 85, is inapplicable because the
statute was repealed is unconvincing. Title 85A O.S. Supp. 2014 §79
contains language substantially similar to that found in the prior statutes on the subject. Section 79 provides:
“If any employer fails to comply with a final compensation judgment or award, any beneficiary of the judgment or award, or the
Commission, may file a certified copy of the judgment or award
in the office of the district court clerk of any county in this state
where any property of the employer may be found. At that time,
the district court clerk shall enter the judgment or award in the
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2677
judgment record of the county, and the judgment or award so
recorded shall be a judgment and lien as are judgments of the
district court, and enforceable as such.”
We agree with the employee that the employer did not strictly comply
with the requirements of Rule 1.52(b), Oklahoma Supreme Court
Rules, Ch. 15, App. 1 by providing a concise statement from the trial
court indicating what “the pertinent parts of the record, when transcribed, will disclose and a like statement of the reasons why the order
should be reviewed in advance of final judgment . . .”. Nevertheless,
under the facts presented, the petition provides sufficient information
for the Court to proceed in this cause. See, Fischer v. Farmers Ins.
Exchange, 1972 OK 130, 501 P.2d 1105 (A petition for certiorari which
did not comply with Rule 1.52 and did not provide sufficient information to allow the Court to proceed was found deficient.).
2. Rule 1.54, Oklahoma Supreme Court Rules, 12 O.S. 2011, Ch. 15,
App. 1.
3. Rule 1.55, Oklahoma Supreme Court Rules, 12 O.S. 2011, Ch. 15,
App. 1.
2014 OK 102
MELODY JOHNSON, as next of kin of
ARDA LEE CHURCHILL, Deceased,
Appellee, v. CONVALESCENT CENTER OF
GRADY COUNTY, LLC d/b/a GRACE
LIVING CENTER - CHICKASHA,
STILLGRADY, LLC, AMITY CARE, LLC,
MIKE DIMOND, DON GREINER,
INDIVIDUALLY AND d/b/a DON
GREINER, TRUSTEE, KENNETH D.
GREINER III REVOCABLE TRUST d/b/a
DON GREINER TRUST, DON GREINER,
BENEFICIARY/TRUSTEE, Appellants.
No. 111,922. November 25, 2014
APPEAL FROM THE DISTRICT COURT OF
GRADY COUNTY, OKLAHOMA, THE
HON. RICHARD G. VAN DYCK,
DISTRICT JUDGE
¶0 This is an interlocutory appeal from an
order of the District Court of Grady County,
Oklahoma. The trial judge denied the appellants’ motion to compel arbitration on the
ground that there was no binding arbitration
agreement. We retained the appeal and affirm
the trial court.
TRIAL COURT AFFIRMED.
L. Ray Maples, II, Travis Dunn, Jimmie A.
Franklin and Nicole R. Snapp-Holloway,
MAPLES LAW FIRM, Edmond, Oklahoma,
and David W. Crowe, BAILEY,CROWE &
KUGLER, LLP, Dallas, Texas, for the Appellee.
Patrick M. Ryan, Phillip G. Whaley, Grant M.
Lucky, RYAN WHALEY COLDIRON SHANDY
PLLC, Oklahoma City, Oklahoma, and J.
Michael Deyong, Gina K. Cheatham, DEYONG
& CHEATAM, PA, Oklahoma City, Oklahoma,
for the Appellants.
EDMONDSON, J.
2678
¶1 The issue is whether the trial court erred
by denying appellants’ (collectively referred to
as Grace) motion to compel arbitration of
plaintiff’s wrongful death claims. The trial
judge ruled that Tamera Nelson did not have
authority to sign the arbitration agreement on
behalf of her grandmother, Arda Lee Churchill,
so no valid arbitration agreement existed. We
agree with the trial court that no valid arbitration agreement existed because Tamera Nelson
was not authorized to make health care decisions for her grandmother under the circumstances. The Health Care Power of Attorney
required that Arda Lee Churchill’s physician
certify that she was not capable of making her
own health care decisions and no such certification was made.
¶2 Grace Living Center-Chickasha (Grace) is
a long-term care facility operating in Chickasha, Oklahoma. Arda Lee Churchill was a resident there from March 13, 2009, when she was
admitted, until July 3, 2011, the date of her
death. Tamera Nelson signed a Dispute Resolution Provision contained within the admission
agreement as “Tamera Nelson POA.” The plaintiff, Melody Johnson, is Ms. Churchill’s daughter
and next of kin. Melody Johnson sued Grace for
the wrongful death of her mother. Grace moved
to compel the dispute to arbitration based on the
Dispute Resolution Provision contained in its
admission agreement.
¶3 Grace argued the arbitration provision in
the admission agreement was valid and covered the claims asserted by Johnson because
Tamera Nelson was the authorized legal representative of Ms. Churchill by virtue of a General Durable Power of Attorney executed on
December 23, 2008. Melody Johnson argued
Tamera Nelson lacked authority under either the
Durable Power of Attorney or the Health Care
Power of Attorney to bind Ms. Churchill to the
arbitration agreement. Therefore, there was no
arbitration agreement; in any event, not one that
would bind Melody Johnson, a non-signatory.
On June 22, 2012, Melody Johnson dismissed the
contract claims against all defendants.
¶4 After a telephonic hearing, the trial judged
ruled that Tamera Nelson was not acting under
any power of attorney on the date of Ms.
Churchill’s admission to Grace’s nursing home.
Melody Johnson, the only claimant, did not
sign the arbitration agreement and the trial
judge ruled that the derivative nature of wrongful death claims is not broad enough to mandate procedural defenses such as arbitration
The Oklahoma Bar Journal
Vol. 85 — No. 34 — 12/20/2014
against one who did not sign an arbitration
agreement. Based on the lack of any binding
arbitration agreement, the trial judge ruled that
the plaintiff was not required to arbitrate her
claims against the defendants.1
¶5 An order denying a motion to compel
arbitration is an appealable order. 12 O.S. 2011
§ 1879.2 The existence of an agreement to arbitrate is a question of law to be reviewed de
novo. Rogers v. Dell Computer Corp., 2005 OK 51
¶ 18, 138 P.3d 826, 831. The case was retained
on the Court’s own motion.
¶6 A court asked to compel arbitration of a
dispute must first determine whether the parties agreed to arbitrate that dispute. Wilkinson
v. Dean Witter Reynolds, Inc., 1997 OK 20, ¶9, 933
P.2d 878, 880 (citing Mitsubishi Motors Corp. v.
Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 626,
105 S.Ct. 3346, 87 L.Ed.2d 444 (1985)). The existence of an arbitration agreement is governed
by principles of state law. Id. If necessary, a
court shall decide whether an agreement to
arbitrate exists or whether a controversy is subject to an agreement to arbitrate. 12 O.S. 2011 §
1857(B). Oklahoma has recognized that although the Federal Arbitration Act, 9 U.S.C. §
2, favors arbitration when it is the parties’ contractual choice of a remedial forum, courts will
not impose arbitration upon parties where they
have not agreed to do so. Okla. Oncology &
Hematology P.C. v. US Oncology, Inc., 2007 OK 12
¶22, 160 P.3d 936 (arbitration is a matter of consent, not coercion, citing Volt Info. Sciences Inc.
v. Bd. of Trustees of Leland Stanford Jr. Univ., 489
U.S. 468 (1989)). Consent to arbitrate is an
essential component of an enforceable arbitration agreement. To assure that the parties have
consented to arbitration, the courts will decide
whether there is a valid enforceable arbitration
agreement, whether the parties are bound by it
and whether the parties agreed to submit a
particular dispute to arbitration.
to be considered taxable to my agent or my
agent’s estate for purposes of any income,
estate, or inheritance tax, and (5) cannot contravene any medical power of attorney I have executed
whether prior or subsequent to the execution of this
Power of Attorney. (Emphasis added.)
¶8 Arda Lee Churchill granted a Medical
Power of Attorney to Tamera Nelson on
December 29, 2008. It defines “health care decision” to mean consent, refusal of consent, or
withdrawal of consent to any care, treatment,
service or procedure to maintain, diagnose, or
treat an individual’s physical or mental condition. It takes effect only if Arda Lee Churchill
becomes unable to make her own health care decisions and that fact is certified in writing by her
physician. Grace argues that signing a nursing
home admission agreement that contains a
Dispute Resolution Provision is not a “health
care decision.”
¶9 Plaintiff directs our attention to Moffet v.
Life Care Centers of America, 187 P.3d 1140, 1147
(Colo. App. 2008), aff’d, 219 P.3d 1068 (Colo.
2009), in which the court concluded that a person who holds a medical durable power of
attorney, in selecting a long-term health care
facility, has the power to execute applicable
admission forms, including arbitration agreements, unless that power is restricted by the
principal. Plaintiff points to the fact that Grace’s
arbitration agreement was mandatory because
Arda Lee Churchill would not be admitted
without it.3 Plaintiff cites Dickerson v. Longoria,
995 A.2d 721, 739 (MD 2010):
¶7 Arda Lee Churchill executed a General
Durable Power of Attorney naming Tamera
Nelson as her agent, on December 23, 2008. It
contains specific restrictions on the agent’s
powers:
“If signing the arbitration agreement is
necessary to receive health care, then the
decision to sign the agreement is a health
care decision because the receipt of health
care depends on whether the patient agrees
to arbitrate his or her claims. In that case,
the decision to sign the arbitration agreement is effectively a decision about where
and whether to receive health care, either
from a facility that requires the patient to
sign an arbitration agreement, from a facility that does not impose such a requirement, or from no facility at all.”
xi) Restrictions on Agent’s Powers. Regardless of the above statements, my agent (1) cannot
execute a will, a codicil or any will substitute on
my behalf; (2) cannot change the beneficiary on
any life insurance policy that I own; (3) cannot
make gifts on my behalf; and (4) may not exercise any powers that would cause assets of mine
¶10 We observe that Oklahoma’s Do-NotResuscitate Act, 63 O.S. 2011 § 3131.3(6) defines
“health care decision” as a decision to give,
withhold, or withdraw informed consent to
any type of health care including, but not limited to, medical and surgical treatments including life-prolonging interventions, nursing care,
Vol. 85 — No. 34 — 12/20/2014
The Oklahoma Bar Journal
2679
hospitalization, treatment in a nursing home or
other extended care facility, home health care
and the gift or donation of a body organ or tissue. Title 63 O.S. § 2200.21A(3) of the Oklahoma Uniform Anatomical Gift Act defines
“health care decision” as any decision regarding the health care of the prospective donor.
¶11 The Medical Power of Attorney in this
case would not become effective until a determination has been made in writing by her
physician that Arda Lee Churchill lacked
capacity to make those decisions. There is no
record of a statement from her physician certifying that she lacked capacity to make her own
health care decisions; therefore, the Medical
Power of Attorney had not become effective at
the time the admission documents were signed
by Tamera Nelson.
¶12 Grace argues that it was the Durable
Power of Attorney that gave Tamera Nelson
authority to sign the admission contract/arbitration agreement binding Arda Lee Churchill.
We cannot agree. The Durable Power of Attorney authorizes Arda Lee Churchill’s agent to
make decisions affecting her business and financial matters but it prohibits her from making
decisions contrary to the Medical Power of
Attorney. Grace does not controvert that signing
the arbitration agreement was a requirement of
admission to the facility. Where arbitration is a
condition of admission, it becomes a “health
care decision.” Dickerson v. Longoria, 995 A.2d
721, 729 (Md. 2010).4
¶13 In Dickerson, the Maryland high court
took the position that if signing the arbitration
agreement was not a requirement for admission, then signing the arbitration agreement
was not a health care decision or a financial
decision made on the decedent’s behalf, but
rather was a decision to waive his right of
access to the courts and right to a trial by jury.
The evidence reflected that the patient conferred on his agent the authority to make
health care and financial decisions on his
behalf, but no evidence suggested that the
patient had authorized his agent to waive his
right of access to the courts. Consequently, the
Maryland court found that the estate was not
bound by the arbitration agreement included
in the nursing home’s admission agreement.
¶14 The Durable Power of Attorney and the
Health Care Power of Attorney in this case
were executed less than one week apart, and the
same person, Tamera Nelson, was named agent
2680
in each. This indicates an intention on Ms.
Churchill’s part to distinguish the powers and
duties given to her agent in each document. The
Durable Power of Attorney authorizes her agent
to make, with limitation, decisions regarding her
business and finances. Her health care agent is
to make decisions on her behalf regarding her
health care only if she becomes incapacitated,
leaving her free to make her own health care
decisions for as long as she is able to do so.
¶15 In Boler v. Security Health Care, L.L.C.,
2014 OK 80, ___ P.3d ____, we affirmed an order
of the District Court of Oklahoma County
denying a nursing home’s motion to compel
arbitration, on the grounds that the decedent’s
heirs were not bound by an arbitration agreement executed by the decedent’s representative. We held that the decedent’s next-of-kin
and personal representative did not sign the
contract and were not bound by an arbitration
agreement included in a contract of admission
signed on the resident’s behalf. The authority
of the agent to sign the agreement on Cleo
Boler’s behalf was not in dispute.
¶16 The Medical Power of Attorney takes
effect only if her physician certifies in writing
that Arda Lee Churchill has become unable to
make her own health care decisions. There is
no dispute that no such certification was made
by Arda Lee Churchill’s physician. The trial
judge determined that no valid arbitration
agreement existed and under the facts in this
case we agree. We find that Tamera Nelson
lacked authority to bind her grandmother,
Arda Lee Churchill, to arbitration. Thus, we
need not address other rulings made by the
trial judge and other issues raised in the petition in error.
TRIAL COURT AFFIRMED.
Concurs: Colbert, C.J., Reif, V.C.J., Kauger,
Watt, Taylor, Combs, Gurich, JJ.
Dissent: Winchester, J.
EDMONDSON, J.
1. The trial judge also concluded that the FAA did not apply and
that Oklahoma’s Nursing Home Care Act, 63 O.S. § 1-1939(D)(E), prevents arbitration of the matter. The trial judge agreed with the plaintiff
that Bruner v. Timberlane Manor Ltd. Partnership, 2006 OK 90, 155 P.3d 16,
remains good law in Oklahoma. These rulings were unnecessary based
on the trial court’s finding that no viable arbitration agreement existed.
2. 12 O.S. 2011 § 1879 provides:
A. An appeal may be taken from:
1. An order denying a motion to compel arbitration . . .
3. R. at p. 73.
4. The Maryland court noted that signing the arbitration agreement
was not a condition of admission, so it was not a health care decision,
but was a decision regarding legal rights in the event of litigation.
The Oklahoma Bar Journal
Vol. 85 — No. 34 — 12/20/2014
2014 OK 103
STATE OF OKLAHOMA ex rel.
OKLAHOMA BAR ASSOCIATION,
Complainant, v. BLAKE RODMAN
GIVENS, Respondent.
SCBD No. 6153. November 25, 2014
ORIGINAL PROCEEDING FOR
ATTORNEY DISCIPLINE
¶0 Respondent entered a plea of guilty on
two misdemeanor charges, including domestic
abuse, in the District Court of Tulsa County,
Oklahoma and received an 18 month deferred
sentence. While on probation, Respondent pled
nolo contendere to disturbing the peace in
Tulsa Municipal Court. The district attorney
moved to accelerate the judgment and sentence which the district court granted. Respondent received a one year suspended sentence.
Respondent notified the Complainant of his
conviction, and pursuant to Rule 7 of the Rules
Governing Disciplinary Proceedings, 5 O.S.
2011, Ch. 1, App. 1-A, the Complainant filed
with this Court certified copies of the relevant
court documents; whereupon, this Court
entered an order of interim suspension.
Respondent filed a brief to support mitigation
of discipline. Complainant responded.
RESPONDENT IS SUSPENDED FROM
THE PRACTICE OF LAW FOR TWO YEARS
AND ONE DAY; ORDERED TO PAY COSTS
Loraine Dillinder Farabow, First Assistant General Counsel, Oklahoma Bar Association, Oklahoma City, Oklahoma, for Complainant.
Respondent, Blake Rodman Givens, Tulsa,
Oklahoma, appearing pro se.
COMBS, J.
¶1 This case is a summary disciplinary proceeding against Respondent Blake Rodman
Givens, pursuant to Rules 7.1 and 7.2 of the
Rules Governing Disciplinary Proceedings
(“RGDP”), 5 O.S. 2011, Ch. 1, App. 1-A.
FACTUAL AND PROCEDURAL
BACKGROUND
¶2 On or about the evening of July 3, 2011,
Respondent’s wife and two children were
sleeping in their car to avoid Respondent who
was intoxicated. Respondent approached the
car and accused the son, who was 14 years of
age, of breaking a television set. Respondent’s
son exited the vehicle and soon thereafter a
Vol. 85 — No. 34 — 12/20/2014
verbal and physical altercation ensued. During
the incident Respondent punched his son in
the mouth causing a small cut and swollen lip.
This occurred in the presence of Respondent’s
wife and 7 year old daughter. Tulsa Police were
called and Respondent was arrested. On February 23, 2012, Respondent pled guilty to
domestic assault and battery in the presence of
a minor child (21 O.S., § 644 (F)) and disturbing
the peace (21 O.S., § 22), in case CM-2011-3434,
Tulsa County, Oklahoma. The district court
withheld entering a judgment of guilt and
deferred sentencing for 18 months. The district
court also ordered Respondent to report to a
Batterer’s Intervention Program.
¶3 On April 21, 2013, while Respondent was
on probation for the first incident, Respondent
was intoxicated and allegedly struck his son in
the back of his head. Respondent’s son called
911. The Police arrived and arrested Respondent for disturbing the peace. On April 25,
2013, Respondent entered a plea of no contest
in Tulsa Municipal Court. Thereafter, upon
application by the Tulsa County District Attorney, the district court accelerated Respondent’s
deferred sentence in case CM-2011-3434. The
Respondent confessed to the State’s application to accelerate and on May 14, 2014, judgment and sentence was filed. The district court
found Respondent had previously pled guilty
in case CM-2011-3434 to the misdemeanor
crime of assault and battery in the presence of
a minor child in violation of 21 O.S., § 644 (F).
Respondent was sentenced to the Tulsa County
jail for a period of one year; however, the entire
sentence was suspended. He was ordered to
undergo counseling, take random urine analysis tests, attend and complete the AIP/DVIS
program, and not to consume any unprescribed medication or illegal drugs.
¶4 Respondent notified the Complainant,
Oklahoma Bar Association (“OBA”), on June 3,
2014, of his conviction for domestic violence in
the presence of a minor, and disturbing the
peace and of his subsequent arrest for creating
a disturbance while intoxicated. He admitted
his actions were the result of his intoxication
and had involved physical and verbal abuse.
Respondent additionally stated:
. . . when my lawyer/father/partner died
in 2009, my real problems began
. . . Upon my father’s death I essentially quit
practicing law, referred my cases to other
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2681
attorneys, and have probably made two
court appearances with other attorneys.
I took 52 weeks of DVIS classes. I spent 5
months in rehab . . ., wore an ankle, alcohol
monitor for an additional 4 months with
drug testing. I have a sponsor, lived in a ½
way house 2 months, attend AA two times
a week. I have had 3 relapses. I am an Alcoholic, but believe I have harmed no clients,
only brought humiliation to the bar, and
my family.
My primary focus has been and continues
to be on my health, and that hopefully
someday I will be able to practice law and
support my family. I believe I am fit presently. I do not intend to defend myself, my
actions have been wrong.
Upon receiving this information, the OBA
opened a formal investigation and forwarded
Respondent’s court documents to the Chief
Justice of this Court.
¶5 On July 15, 2014, this Court ordered the
interim suspension of the Respondent from the
practice of law pursuant to Rule 7.3 RGDP.
Respondent was given until July 28, 2014, to
show cause why the order of interim suspension should be set aside. The Respondent did
not respond to the show cause order concerning his interim suspension. The order also gave
Respondent until August 18, 2014, to show
cause why a final order should not be imposed,
to request a hearing, or to file a brief and any
evidence tending to mitigate the severity of
discipline. Respondent’s Brief Requesting Consideration of Mitigating Circumstances was
filed on August 21, 2014. In his handwritten
brief, Respondent stated he will not request a
hearing and he had no defenses. He also stated
he has never been previously disciplined, he
has completed 52 weeks of DVIS classes and he
has reconciled with his son. Respondent also
apologized for his actions and requested to be
reinstated. Attached to the brief is a letter dated
August 11, 2014, written by Thomas R. Brett on
Respondent’s behalf. Mr. Brett is a member of
the Bar and stated “Blake Givens has matured
and grown from his disbarment experience . . .
I sincerely believe Blake Givens is professionally prepared to resume his obligations as a
practitioner of the law.”
¶6 On August 22, 2014, the day after Respondent filed his handwritten brief, he contacted
an OBA Investigator and told him he had an
alcohol related relapse. He also told the inves2682
tigator he was attempting to “detox” at home
because he was unsure if his insurance would
cover in-patient “detox.”
¶7 The July 15, 2014, order gave the OBA
until September 2, 2014, to respond to any
briefs the Respondent may file concerning a
final order. On September 3, 2014, the OBA
filed its response brief in support of a final
order and an Application to Assess Costs in the
amount of fourteen dollars and nine cents
($14.09). In its response brief, the OBA recommended Respondent be suspended from the
practice of law for two years and one day commencing from the date of the interim suspension and he be assessed costs.
STANDARD OF REVIEW
¶8 This Court has exclusive original jurisdiction over Bar disciplinary matters. State ex rel.
Oklahoma Bar Ass’n v. Funk, 2005 OK 26, ¶3, 114
P.3d 427, 430. Protecting the public and purification of the Bar are the primary purpose of
disciplinary proceedings rather than punishment of the offending attorney. State ex rel.
Oklahoma Bar Ass’n v. Chappell, 2004 OK 41,
¶23, 93 P.3d 25, 31. This Court will conduct a de
novo review of the record to determine if misconduct has occurred and what discipline is
appropriate. State ex rel. Oklahoma Bar Ass’n v.
Soderstrom, 2013 OK 101, ¶9, 321 P.3d 159, 160.
¶9 The record must be sufficient for this
Court to conduct an inquiry into essential facts.
Soderstrom, 2013 OK 101 at ¶10. On July 2, 2014,
the OBA filed certified copies of the information, two orders of deferred sentence, the application to accelerate judgment and sentence, the
order accelerating judgment and sentence and
the judgment and sentence. Pursuant to Rule
7.2 RGDP, the judgment and sentence constitutes conclusive evidence of the commission of
the crimes upon which the judgment and sentence was based and shall be the basis for discipline. The record consists of these documents, the briefs of the parties and attached
exhibits. We find there is a sufficient record for
our de novo review.
¶10 In a summary disciplinary proceeding
there are two basic issues we address: 1) does
the conviction demonstrate the lawyer’s unfitness to practice law, and if so, 2) what is the
appropriate discipline to be imposed. State ex
rel. Oklahoma Bar Ass’n v. Cooley, 2013 OK 42,
304 P.3d 453, 454.
The Oklahoma Bar Journal
Vol. 85 — No. 34 — 12/20/2014
UNFITNESS TO PRACTICE LAW
¶11 We first review Respondent’s criminal
conduct to determine if it facially demonstrates
his unfitness to practice law. Respondent pled
guilty to domestic abuse for striking his son.
While on probation he was again arrested for
disturbing the peace when he allegedly struck
his son. Not all convictions, by themselves,
indicate an unfitness to practice law. However,
Rule 8.4 of the Oklahoma Rules of Professional
Conduct (“ORPC”), 5 O.S. 2011, Ch. 1, App.
3-A, provides some guidelines. Rule 8.4 (b)
ORPC provides:
It is professional misconduct for a lawyer
to:
(b) commit a criminal act that reflects
adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other
respects;
Comment 2 to Rule 8.4 ORPC provides in pertinent part:
Although a lawyer is personally answerable to the entire criminal law, a lawyer
should be professionally answerable only
for offenses that indicate lack of those characteristics relevant to law practice. Offenses involving violence, dishonesty, breach of
trust, or serious interference with the
administration of justice are in that category. A pattern of repeated offenses, even
ones of minor significance when considered separately, can indicate indifference to
legal obligation.
Violent acts in the form of domestic abuse
demonstrate a lawyer’s unfitness to practice
law. We most recently found, “[a]s incidents of
domestic . . . abuse rise and become the focus
of . . . public attention, it becomes more incumbent on this Court to protect the public by
sending a message to other lawyers that this
misconduct is considered a serious breach of a
lawyer’s ethical duty and will not be tolerated.” State ex rel. Oklahoma Bar Ass’n v. Zannotti,
2014 OK 25, ¶24, 330 P.3d 11, 17. What is additionally troubling is the abuse here was part of
a repeated pattern. The second incident also
allegedly involved physical abuse and occurred
while on probation for the first incident and
after Respondent had been ordered to participate in a Batter’s Intervention Program. His
repeated actions indicate to this Court an indifference to his legal obligations and cast serious
doubt on his fitness to practice law.
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¶12 Other causes of concern are present in
this case. Each criminal incident involved
Respondent being intoxicated. Respondent’s
wife claims he had often been drunk and abusive. Respondent was ordered to undergo
counseling and to complete an AIP/DVIS program. In his June 3, 2014, facsimile to the OBA
he claims he received inpatient treatment for 5
months in Louisiana, participated in Alcoholics
Anonymous, and wore an alcohol monitoring
device. However, he admits to having 3 relapses
and a fourth relapse was reported after his
interim suspension and on the day following the
filing of his brief. We have previously held
“members of the Bar must be reminded that substance abuse of any kind is incompatible with
the practice of law.” State ex rel. Oklahoma Bar
Ass’n v. Giger, 2001 OK 96, ¶21, 37 P.3d 856, 864.
¶13 The record reflects Respondent’s abuse
of alcohol contributed to his criminal behavior.
To date, the steps taken by the Respondent and
those ordered by the district court have not
been effective. He has yet to demonstrate a
sustained commitment to alcohol abuse treatment. Continued relapses while in a substance
abuse program have been found by this Court
to adversely impact on an attorney’s ability to
practice law. Oklahoma Bar Ass’n v. Soderstrom,
2013 OK 101, ¶12, 321 P.3d 159, 161.
¶14 In this matter alone, there are other
examples of conduct which calls into question
Respondent’s ability to practice law. Three
examples can be found in regards to Respondent’s brief. Respondent was suspended on
July 15, 2014, however, he continued to use his
law firm’s letterhead when sending his brief to
the OBA. Rule 7.5 ORPC provides: “(a) [a] lawyer shall not use a firm name, letterhead or
other professional designation that violates
Rule 7.1.” Rule 7.1 ORPC provides: “[a] lawyer
shall not make a false or misleading communication about the lawyer or the lawyer’s services.” Although, the brief was sent to the OBA
who was well aware of Respondent’s suspension, using the letterhead while suspended
presents an otherwise misleading communication that one is in good standing to practice law
and violates Rule 7.5 ORPC.
¶15 Respondent’s brief also had two file
stamp dates by the Supreme Court Clerk. One
was for July 9, 2014, and the other one was for
August 21, 2014, the day the brief was actually
filed. It appears Respondent used the cover
page from the OBA’s Affidavit for Proof of Service of Rule 7 Notice Letter which was file
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stamped on July 9, 2014. A copy of this page
was attached to the front of Respondent’s
handwritten brief. Pursuant to this Court’s July
15, 2014, order, Respondent was required to file
his brief by August 18, 2014. The brief was filed
3 days out of time. At worst, leaving the July 9,
2014, file stamp date was an attempt to deceive
one into believing the brief was timely filed.
However, it does not appear that was the intent
here because it would have been ludicrous to
think a brief would have been filed prior to the
actual interim suspension order. Regardless, at
best, it shows a lack of attentiveness and reflects on Respondent’s ability to practice law.
¶16 Finally, Respondent’s brief was handwritten. As the OBA points out, Oklahoma Supreme
Court Rule 1.11, 12 O.S. 2011, Ch. 15, App. 1,
requires all briefs to be printed or typed.
¶17 We find Respondent’s repeat criminal
acts, lack of commitment to substance abuse
recovery, his inattentiveness and failure to comply with this Court’s order and rules demonstrates his unfitness to practice law at this time.
DISCIPLINE
¶18 The goal in disciplinary proceedings is to
protect the public and preserve the integrity of
the bar. State ex rel. Oklahoma Bar Ass’n v. Beasley, 2006 OK 49, ¶34, 142 P.3d 410, 417. The
purpose is to gauge a lawyer’s continued fitness to practice law and not to punish the
offending lawyer. Imposition of an appropriate
discipline is also likely to deter similar misconduct in the practicing bar. State ex rel. Oklahoma
Bar Ass’n v. Zannotti, 2014 OK 25, ¶23, 330 P.3d
11, 17. Although appropriate discipline is determined on a case-by-case basis, we consider the
discipline imposed in our previous decisions
concerning like misconduct.
¶19 In Zannotti, we held that anything less
than a 2 year suspension from the practice of
law would not protect the public nor protect
the integrity of the judicial system. Zannotti,
2014 OK 25 at ¶24. Zannotti pled nolo contendere to the misdemeanor crimes of domestic
assault and battery and malicious injury to
property. He received a two year deferred sentence. When determining discipline, this Court
took into consideration the fact the trial court
thought it was necessary to keep Zannotti in the
criminal system for a full two years for the safety
of the public. Zannotti, 2014 OK 25 at ¶24.
¶20 In State ex rel. Oklahoma Bar Ass’n v. Soderstrom, 2013 OK 101, ¶13, 321 P.3d 159, 161, we
2684
suspended Soderstrom from the practice of law
for two years and a day. This was done to
assure there would be a substantial period of
sobriety before Soderstrom could request reinstatement. In determining this discipline we
took into consideration Soderstrom’s continued relapses into substance abuse. Although
this Court was mindful of Soderstrom’s meaningful steps to address his addictions, we
determined his continued relapses adversely
impacted his fitness to practice law. Soderstrom,
2013 OK 101 at ¶12.
¶21 In the present case, Respondent received
a suspended sentence for one year. Unlike Zannotti, we do not find it appropriate here to use
the one year suspended sentence as a guideline
for discipline. Zannotti concerned one incident
of domestic abuse whereas Respondent was
involved in two separate incidents with the last
taking place during his probationary period for
the first incident. We are concerned about the
pattern displayed by Respondent’s conduct
and believe one year is not enough time for
him to demonstrate to this Court a substantial
change in behavior has occurred. His many
relapses into substance abuse are also a concern. The record reflects Respondent’s intoxication was a factor in his criminal conduct. As in
Soderstrom, Respondent should be required to
demonstrate an extended period of sobriety
before he may seek reinstatement to the Bar.
¶22 Respondent has presented no defense for
his actions and his brief states he readily
accepts any discipline. He claims to have reconciled with his son and has completed 52
weeks of DVIS classes. The attached letter written by Mr. Brett states Respondent has matured
and grown from his disbarment experience
and is now “professionally prepared to resume
his obligations as a practitioner of the law.”
This letter was dated August 11, 2014, less than
a month after Respondent received his interim
suspension. Although, we encourage Respondent to continue his reconciliation efforts and
remain sober, not enough time has passed to
convince this Court he is prepared to resume
the practice of law. This point is emphasized by
the fact he reported having a relapse the day
following the filing of his brief, August 22,
2014. As in Soderstrom, we find a suspension
period of two years and one day is appropriate.
COSTS
¶23 The OBA filed an Application to Assess
Costs in the prosecution of this matter pursu-
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Vol. 85 — No. 34 — 12/20/2014
ant to Rules 6.13 and 6.16 RGDP in the amount
of $14.09. The application is granted.
CONCLUSION
¶24 Respondent Blake Rodman Givens is
suspended from the practice of law for a period of two years and one day from the date of
the order of interim suspension, July 15, 2014.
He is ordered to pay costs in the amount of
$14.09 within ninety days of the date of this
opinion.
RESPONDENT IS SUSPENDED FROM
THE PRACTICE OF LAW FOR TWO YEARS
AND ONE DAY; ORDERED TO PAY COSTS
¶25 COLBERT, C.J., REIF, V.C.J, EDMONDSON, WINCHESTER, TAYLOR, COMBS and
GURICH, JJ., concur.
¶26 KAUGER and WATT, JJ., concur in part
and dissent in part.
2014 OK 104
STATE OF OKLAHOMA ex rel.
OKLAHOMA BAR ASSOCIATION,
Complainant, v. SAM GEORGE CAPORAL,
Respondent.
SCBD No. 6111. November 24, 2014
ORDER APPROVING RESIGNATION
FROM OKLAHOMA BAR ASSOCIATION
PENDING DISCIPLINARY PROCEEDINGS
¶1 On October 20, 2014, Sam George Caporal
(Caporal), filed an affidavit regarding his resignation pending disciplinary proceedings, see
Rule 8.1, Rules Governing Disciplinary Proceedings (RGDP), 5 O.S.2001, ch. 1, app. 1-A,
requesting that he be allowed to resign his
membership in the Oklahoma Bar Association
(OBA) and relinquish his right to practice law
in Oklahoma pending disciplinary proceedings. Caporal tendered his resignation after a
hearing before the Professional Responsibility
Tribunal (PRT), but before the PRT filed its
report. Also on October 20, 2014, the OBA filed
its application for an order approving the resignation. In the complaint filed on February 6,
2014, the OBA alleges that Caporal breached his
fiduciary duties as a court-appointed guardian
by failing to keep accurate records of the ward’s
property; failing to keep accurate records of
expenditures and income; failing to properly file
accounting even upon order of the court to the
point of being held in contempt; and failing to
produce the ward’s medical and financial
records and receipts when required to do so. The
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OBA also alleged that Caporal misrepresented
facts regarding the ward’s assets and his fees to
the court, paid himself fees without court
approval, and charged fees in excess of the statutory seven-and-one-half percent of the ward’s
income and then attempted to conceal the overage from the court.
¶2 This Court finds that Caporal has complied with the requirements of Rule 8.1 of the
RGDP. Consistent with Rule 8.1’s requirements,
Caporal’s affidavit reflects that his tendered
resignation is freely and voluntarily rendered,
that he is not subject to coercion or duress, and
that he is aware of the consequences of submitting the resignation.
¶3 Caporal states that he is aware of the complaint filed against him in State ex rel. Oklahoma
Bar Ass’n v. Caporal, SCBD No. 6111, which
alleges violations of his professional duties and
his oath as an attorney. Caporal recognizes that
a hearing was held before the PRT on September 25, 2014, and that the OBA has the burden
of proving the allegations. Caporal waives all
rights to contest the allegations in the complaint. He states that he is aware that the allegations, if proven, would constitute violations
of the Oklahoma Rules of Professional Conduct, 5 O.S.2011, ch. 1, app. 3-A, and the RGDP.
Caporal has familiarized himself with Rule 9.1
of the RGDP and agrees to comply with its
requirements.
¶4 Caporal acknowledges that he may not
make application for reinstatement for five
years after the effective date of this order and
that he must comply with Rule 11 of the RGDP
when seeking reinstatement. Caporal agrees to
reimburse the Client Security Fund for claims
approved and paid, together with statutory
interest, as a result of these proceedings and
before seeking reinstatement.
¶5 The OBA has filed an application for costs
in the amount of $1,917.80 for expenditures as
a result of these proceedings. Caporal acknowledges that he is responsible for reimbursement
of these costs, does not contest the amount, and
agrees to repay the OBA for these costs.
¶6 This Court finds that Caporal’s resignation complies with the requirements set forth
in Rule 8.1 of the RGDP, and should be
approved. Therefore, it is ordered that Sam
George Caporal’s name be stricken from the
roll of attorneys. Because resignation pending
discipline is tantamount to disbarment, Caporal may not make an application for reinstate-
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2685
ment prior to the expiration of five years from
the date this order becomes final. Further,
Caporal shall reimburse the Client Security
Fund any amounts paid out as a result of these
proceedings before seeking reinstatement. Rule
11.1(b), RGDP. Pursuant to Rule 9.1 of the
RGDP, Caporal shall notify all of his clients, if
any, having legal business pending with him
within 20 days, by certified mail, of his inability to represent them and of the necessity for
promptly retaining new counsel. Caporal shall
reimburse the OBA for $1,917.80 in costs.
¶7 DONE BY ORDER OF THE SUPREME
COURT IN CONFERENCE this 24th day of
November 2014.
/s/ Tom Colbert
CHIEF JUSTICE
Concur: Colbert, C.J.; Reif, V.C.J.; and Kauger,
Watt, Winchester, Edmondson, Taylor, and
Combs, JJ.
Not Participating: Gurich, J.
SENATE BILL NO. 1246 IS NOT
UNCONSTITUTIONAL.
Jerry R. Fent, Oklahoma City, Oklahoma, Pro
Se Petitioner.
Scott Pruitt, Oklahoma Attorney General, Patrick Wyrick, Solicitor General, Oklahoma City,
Oklahoma, for the Respondent.
Louis W. Bullock, Patricia W. Bullock, for Amicus Curiae, Tulsa, Oklahoma, Steven H. Dow.
KAUGER, J:
¶1 The dispositive issue is the definition of
“raising revenue” for purposes of art. 5 §33 of
the Okla. Const.1 The parties concede that if
Senate Bill No. 12462 is a revenue bill subject to
§33, it failed to comply with the constitutional
requirements for its enactment. We hold that
because the ballot title reveals that the measure
was aimed at only bills “intended to raise revenue” and “revenue raising bills,” the obvious
meaning of raising revenue in this context is to
increase revenue.
2014 OK 105
FACTS
JERRY F. FENT, as a resident taxpayer, of the
State of Oklahoma, and all other similar
persons, Petitioner, v. MARY FALLIN,
Governor of the State of Oklahoma,
Respondent.
¶2 Senate Bill No. 1246 (SB 1246/the bill) is a
bill concerning the modification of income tax
rates in Oklahoma which do not become effective until fiscal year 2016.3 Bills for raising revenue are required to originate in the House of
Representatives pursuant to art. 5, §33. This bill
originated in the Senate and was passed by the
Senate during the Second Regular Session of
the Fifty-Fourth Legislature on February 27,
2014, with a vote of 32 ayes and 10 nays. It
passed the House of Representatives on April
23, 2014, with a vote of 56 ayes and 30 nays.
The Governor approved the bill on April 28,
2014, and filed it with the Secretary of State the
same day. The effective date of the modification is August 28, 2014.
No. 112,867. December 2, 2014
APPLICATION TO ASSUME ORIGINAL
JURISDICTION AND PETITION FOR
DECLARATORY RELIEF AND WRITS OF
INJUNCTION AND/OR MANDAMUS.
¶0 The petitioner, Jerry R. Fent, challenged
Senate Bill No. 1246 alleging that because it
is a revenue bill and subject to the requirements of the Oklahoma Constitution art. 5,
§33, it fails to pass constitutional muster
because the Legislature did not follow the
Constitution when it was enacted. The parties concede that the bill does not meet the
requirements of art. 5, §33 which was
amended by the people in 1992. The cause
hinges on the definition of “raising revenue.” Because the ballot title reveals that
the measure was aimed at only bills
“intended to raise revenue” and “revenue
raising bills,” the obvious meaning of raising revenue in this context is to increase
revenue.
ORIGINAL JURISDICTION ASSUMED.
DECLARATORY RELIEF DENIED.
2686
¶3 On May 22, 2014, the petitioner, Jerry R.
Fent (petitioner), a State of Oklahoma resident
taxpayer, filed this cause to challenge the validity of the Legislature’s enactment of SB 1246.
On June 20, 2014, another resident and taxpayer, Steven H. Dow, filed an amicus curiae
brief which we accepted on July 11, 2014. The
Court held oral argument on October 14, 2014.
¶4 The petitioner brought this original action
arguing that SB 1246, a bill which reduces
income taxes in some circumstances, was a
“raising revenue” bill pursuant to the Okla.
Const. art. 5, §33 and as such, it must comply
with the Constitution’s prescribed methods for
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Vol. 85 — No. 34 — 12/20/2014
enactment. He insists that whether legislation
increases or decreases taxes is irrelevant if the
purpose of the legislation is to collect taxes.
The respondent contends that any bill that lowers income taxes is not “raising revenue,” thus
not falling within the confines of the Okla.
Const. art 5, §33. This argument is premised on
the proposition that in 1992, when the voters
changed the requirements on how revenue
bills must be passed in the Legislature, the voters understood the definition of “raising revenue” to mean increase only.
SENATE BILL NO. 1246 IS NOT A
REVENUE BILL SUBJECT TO THE
LIMITATIONS ON PASSAGE AS
PRESCRIBED BY ART. 5, §33 OF THE
OKLAHOMA CONSTITUTION.
¶5 The Okla. Const. art 5, §33 concerns “revenue” bills. At statehood, it provided only
three requirements:
1. All bills for raising revenue shall originate in the House of Representatives.
2. The Senate may propose amendments to
revenue bills.
3. No revenue bill shall be passed during
the last five days of the session.
The Oklahoma Supreme Court considered this
constitutional provision and defined “raising
revenue” a year after statehood on December
21, 1908, in Anderson v. Ritterbusch, 1908 OK
250, 98 P. 1002, 22 Okla. 761.
¶6 Anderson did not involve a bill which
decreased revenue but it did involve a challenge to a state statute which concerned the
collection of taxes. The Court defined the use
of the word “revenue” as a law in which taxes
are levied for state purposes. However, it
excluded from the definition laws which incidentally created revenue, if the primary purpose of the law was not revenue raising. In
deciding the case, the Court did not define
“revenue” as a decrease in taxes but it discussed the history of the origin of governmental “revenue” raising, describing the word
“revenue” as:
1) laws made for the direct and avowed
purpose of creating and securing revenue
or public funds for the service of the government;
2) bills which impose taxes upon the people, either directly or indirectly, or lay
Vol. 85 — No. 34 — 12/20/2014
duties, imposts, or excises for the use of the
government;
3) confined to bills to levy taxes in the strict
sense of the word, and has not been understood to extend to bills for other purposes
which may incidentally create revenue.
¶7 The Court decided that the precise meaning of the term “raising revenue” as used in the
Okla. Const. art. 5, §33 was to levy a tax to collect revenue; and that if the purpose of the act
is to levy or collect taxes for the State, it must
comply with the Okla. Const. art. 5, §33. The
Anderson Court, quoting a frequently cited
Alabama case,4 said that:
It is clear to our minds that ‘increase of
revenue’ is not implied in the language ‘to
raise revenue.’ The transitive verb ‘to raise’
in this connection means ‘to bring together;
to collect; to levy; to get together for use or
service, as to raise money. * * *’ (Webster’s
Dictionary.) The precise meaning of this
clause is to levy a tax as a means of collecting revenue. See Harper v. Commissioners
of Elberton, 23 Ga. 566. The act in question
in one sense reduced the taxes, for it
assumed to relieve certain railroad property from county taxation. But it was nevertheless a bill to raise revenue.
This is the only reference to the suggestion that
the definition of “raise” used was meant to
include a “decrease” in revenue, nor have we
had a case since Anderson which directly concerned a revenue bill which “decreased” taxes.
¶8 We need not be concerned that the obvious purpose of SB 1246 is to levy income taxes
for state purposes. The title of an act is used to
determine legislative intent.5 The entirety of SB
1246 is concerned with the collection of income
taxes. There isn’t a provision of the bill that
concerns another topic. The title of SB 1246
supports a determination that its purpose is to
collect or levy taxes.6
¶9 The voters amended art. 5, §33 of the
Okla. Const. by State Question No. 640, Initiative Petition No. 348, at an election held on
March 10, 1992. The 1992 Ballot Title of State
Question 640 states:
Shall an amendment to Section 33 of Article
V of the Oklahoma Constitution which
would require any bill passed by the legislature intended to raise revenue for support
of state government be submitted to a vote
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2687
of the people at the next general election
before it can become effective; authorizing
enactment of revenue raising bills without a
vote of the people if 3/4 of the members of
each house approve the bill and it is sent to
the Governor for 90 days; and removing the
authority of the legislature to prevent a referendum vote through enactment of an
emergency clause be adopted?
decrease revenue. However, the ballot title
reveals that the measure was aimed only at bills
“intended to raise revenue” and “revenue raising bills.” The plain, popular, obvious and natural meaning of “raise” in this context is “increase.”
This plain and popular meaning was expressed
in the public theme and message of the proponents of this amendment: “No New Taxes Without A Vote Of The People.”
¶10 Although no change was made to the
definition of “raising revenue” in 1992, the
respondent argues that the voters did not
intend §33 to apply to bills which decrease
state revenues, but that it was only meant to
apply to increases. We agree. The State included in its brief newspaper articles discussing
limiting the Legislature’s taxing power, restricting tax hikes to bring accountability to the
government. The intent of the framers and
electorate in adopting the 1992 amendment
must be given effect. Absent an ambiguity, the
intent of the framers and electorate is settled by
the language of the provision itself and the
courts are not at liberty to search for its meaning beyond the provision.
¶14 Reading the ballot title and text of the
provision together reveals the 1992 amendment had two primary purposes. First, the
amendment has the effect of limiting the generation of State revenue to existing revenue
measures. Second, the amendment requires
future bills “intended to raise revenue” to be
approved by either a vote of the people or a
three-fourths majority in both houses of the
Legislature.
¶11 More importantly, the intent of the framers and electorate is also reflected in the ballot
title of the proposed amendment. The ballot
title and text of the provision are to be read
together, even if the text contains no ambiguities or absurdities.7 The ballot title is a contemporaneous construction of the constitutional
amendment and weighs heavily in determining its meaning.8
¶12 Constitutional provisions are not made
for parsing by lawyers, but for the instruction
of the people and the representatives of government, so that they may read and understand their rights and duties.9 Words used in a
constitutional provision and an accompanying
ballot title are to be construed in a way most
familiar to ordinary people who voted on the
measure.10 Words which do not of themselves
denote that they are used in a technical sense,
are to have their obvious meaning.11
¶13 With this guidance in mind, the issue
becomes what would the ordinary person who
voted on the 1992 amendment, as explained by
its ballot title, understand they were approving
regarding the generation of State revenue. The
amendment’s text and ballot title both indicate
that the people are establishing new restrictions
on “revenue bills” and the original definition of
this term includes bills that both increase and
2688
¶15 Clearly, one of the overriding purposes
of the 1992 amendment to art. 5, §33 was to
secure “tax relief.” Given this fact, it is extremely doubtful that the people intended the popular vote or super-majority approvals to apply
to a Legislative measure providing further
relief by a reduction in the income tax rate.
Although this Court approved the ballot title
for the 1992 amendment in In Re Initiative Petition No. 348, State Question No. 640, 1991 OK
110, 820 P.2d 772, we did not specifically
address whether the ballot title informed the
voters whether the measure was meant to
apply to both tax increases and decreases. That
issue was simply not before the Court.
¶16 We also traced the history of §33 in
Calvey v. Daxon, 2000 OK 17, 997 P.2d 164. We
explained that the 1992 amendment of art. 5,
§33 changed the method state government
may use to raise revenue. It did not change the
clearly settled meaning of the terms, “revenue
bill” or “bill for raising revenue.” However, the
issue in Calvey concerned the Legislature’s act
of transferring money from fee-generated
funds to a special cash fund. Again, we did not
specifically address the 1992 ballot title and
whether it revealed that measure was aimed
only at bills which voters would understand
“raise” to mean “increase” only. Consequently,
both In Re Initiative Petition No. 348, State
Question No. 640, supra, and Calvey v. Daxon,
supra, are distinguishable on their facts and are
not otherwise dispositive of this cause.
¶17 A constitutional provision must be construed considering its purpose and given a
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Vol. 85 — No. 34 — 12/20/2014
practical interpretation so that the manifest
purpose of the framers and the people who
adopted it may be carried out.12 Nothing in the
ballot title or text of the provision reveals any
intent to bar or restrict the Legislature from
amending the existing revenue measures, so
long as such statutory amendments do not
“raise” or increase the tax burden. Accordingly,
we must conclude that to the extent that
Anderson v. Ritterbusch, 1908 OK 250, 98 P.
1002, 22 Okla. 761 implies otherwise, it is
expressly overruled.
CONCLUSION
¶18 We hold that Senate Bill 1246 is not
unconstitutional. The popular vote/supermajority approvals in art. 5, §33 of the Okla.
Const. do not apply to the 2014 statutory enactment that reduced State income tax rates. To
hold otherwise would defeat the evident object
and purpose of the 1992 amendment to art. 5,
§33. To the extent Anderson v. Ritterbusch,
1908 OK 250, 98 P. 1002, 22 Okla. 761 implies
otherwise, it is expressly overruled.
ORIGINAL JURISDICTION ASSUMED.
DECLARATORY RELIEF DENIED. SENATE
BILL 1246 IS NOT UNCONSTITUTIONAL.
REIF, V.C.J., KAUGER, EDMONDSON, TAYLOR, COMBS, GURICH, JJ., concur.
WINCHESTER, J., concurs in result.
COLBERT, C.J., WATT, J., not voting.
KAUGER, J:
1. Art. 5 §33 of the Okla. Const provides that:
Revenue bills - Origination - Amendment - Limitations on
passage - Effective date - Submission to voters.
A. All bills for raising revenue shall originate in the House of
Representatives. The Senate may propose amendments to revenue bills.
B. No revenue bill shall be passed during the five last days of
the session.
C. Any revenue bill originating in the House of Representatives shall not become effective until it has been referred to the
people of the state at the next general election held throughout
the state and shall become effective and be in force when it has
been approved by a majority of the votes cast on the measure at
such election and not otherwise, except as otherwise provided in
subsection D of this section.
D. Any revenue bill originating in the House of Representatives may become law without being submitted to a vote of the
people of the state if such bill receives the approval of threefourths (3/4) of the membership of the House of Representatives
and three-fourths (3/4) of the membership of the Senate and is
submitted to the Governor for appropriate action. Any such
revenue bill shall not be subject to the emergency measure provision authorized in Section 58 of this Article and shall not become
effective and be in force until ninety days after it has been
approved by the Legislature, and acted on by the Governor.
2. Senate Bill No. 1246 is found at Okla. Sess. L. 2014, Ch. 195. It
modifies income tax rates and requires the Board of Equalization to
make certain determinations.
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3. Oklahoma Tax Commission. Fiscal Impact Statement and/or
Administrative Impact Statement. Second Regular Session, FiftyFourth Oklahoma Legislature.
4. Perry County et al. v. Selma, etc, Railway Company, 58 Ala. 546.
5. Jones, supra note 8 at ¶15; Atkinson v. Halliburton Co., 1995 OK
104, ¶17, 905 P.2d 772.
6. SB 1246, Okla. Sess. L. 2014, Ch. 195 states that:
An Act relating to income tax; amending 68 O.S. 2011, Section
2355, as amended by Section 2, Chapter 253, O.S.L. 2013 (68 O.S.
Supp. 2013, Section 2355), which relates to imposition of tax;
deleting expiration date of specified tax rate levy; deleting tax
rate applicable to certain time periods under specified circumstances; conforming references; amending 68 O.S. 2011, Section
2355, as last amended by Section 1 of this act, which relates to
imposition of tax; providing expiration date for specified tax rate
levy contingent upon specified circumstance; modifying tax rate
applicable to certain amounts of taxable income during specified
time periods; providing for certain tax levy contingent upon
specified determination by State Board of Equalization; conforming language; imposing specified duties on State Board of Equalization related to implementation of certain top marginal income
tax rates for specified time periods; prescribing method for
specified computations for specified time periods; mandating
certain action based on computations; repealing Section 3, Chapter 253, O.S.L. 2013 (68 O.S. Supp. 2013, Section 2355.1E), which
relates to implementation of certain top marginal income tax
rate; and providing for codification.
7. Southwestern Bell Telephone Co. v. Oklahoma State Bd. of
Equalization, 2009 OK 72, ¶13, 231 P.3d 638.
8. Austin, Nichols & Co. v. Oklahoma County Bd. of Tax Roll Corrections, 1978 OK 65, ¶18, 578 P.2d 1200.
9. In re Assessment of Personal Property Taxes Against Missouri
Gas Energy, 2008 OK 94, ¶19, 234 P.3d 938.
10. In re Assessment of Personal Property Taxes Against Missouri
Gas Energy, see note 9, supra.
11. In re Assessment of Personal Property Taxes Against Missouri
Gas Energy, see note 9, supra.
12. Austin, Nichols & Co. v. Oklahoma County Bd. of Tax Roll Corrections, see note 8, supra.
2014 OK 106
TRINITY BAPTIST CHURCH, Plaintiff/
Appellant, v. BROTHERHOOD MUTUAL
INSURANCE SERVICES, LLC, Defendant,
and SOONER CLAIMS SERVICES, INC.,
Defendant/Appellee.
No. 113,072. December 9, 2014
ON APPEAL FROM THE DISTRICT
COURT OF OKLAHOMA COUNTY
HONORABLE PATRICIA G. PARRISH
DISTRICT JUDGE
¶0 A church filed a claim with its insurer for
damage to its sanctuary after a severe winter
storm. The insurer hired an independent insurance adjuster to adjust the claim. After a
lengthy process, the church filed suit against
both its insurer and the independent adjuster
alleging breach of contract, bad faith, and gross
negligence. The church settled with its insurer,
and the trial court granted summary judgment
for the independent adjuster. We affirm, on the
ground that the independent adjuster: 1) was
not subject to the implied covenant of good
faith and fair dealing as it was not a party to
the insurance contract and had no special relationship with the insured; and 2) owed no legal
The Oklahoma Bar Journal
2689
duty to the insured that would subject it to
liability in tort for negligent adjustment of the
claim.
JUDGMENT OF THE TRIAL COURT IS
AFFIRMED. CAUSE DISMISSED.
Ryan M. Oldfield, Oldfield & Buergler, P.L.L.C.,
Oklahoma City, Oklahoma, for Plaintiff/
Appellant.
John Wiggins, Wiggins, Sewell & Ogletree,
P.C., Oklahoma City, Oklahoma, for Plaintiff/
Appellant.
George w. Dahnke, Abowitz, Timberlake &
Dahnke, P.C., Oklahoma City, Oklahoma, for
Defendant/Appellee.
COMBS, J.:
¶1 The primary issues presented on appeal
are: 1) whether a special relationship existed
between an insured entity and an independent
adjuster hired by the insurer, sufficient to subject the independent adjuster to the implied
covenant of good faith and fair dealing arising
under the insurance contract; and 2) whether
an independent insurance adjuster owes a
legal duty to the insured such that it may be
liable to the insured for negligence in its adjustment of the claim. This Court determines the
answer to both questions is no.
collect necessary documentation, or provide a
complete estimate; 3) to personally inspect the
losses; and 4) provide a descriptive report to if
a loss was possibly not covered so that a Brotherhood adjuster could make a coverage determination.
¶4 Trinity disputes that Sooner stuck entirely
to the terms of its Limited Assignment over the
course of its investigation, arguing that Sooner’s representative made coverage recommendations to Brotherhood in contravention of the
Limited Assignment.2 Regardless, Trinity
agreed that Sooner had no authority to make
coverage determinations to it. Trinity also
agreed that Sooner’s evaluations and estimates
of damages were submitted directly to Brotherhood and it was Brotherhood that determined
what documentation generated by Sooner
would be provided to Trinity. Trinity also
agreed that Sooner’s services were charged at
Sooner’s customary hourly rate and that Brotherhood reimbursed Sooner for its expenses.
¶2 Trinity Baptist Church (Trinity) purchased
an insurance policy for its property from Brotherhood Mutual Insurance Company (Brotherhood),1 effective (as amended) from July 1,
2009, through July 1, 2010. On December 24,
2009, a powerful winter storm struck the Oklahoma City area, which Trinity alleged resulted
in significant damage to its church property
due to accumulation of snow and ice on its
sanctuary building. Trinity filed a claim with
Brotherhood on or about January 12, 2010,
asserting damage caused by the storm.
¶5 After a lengthy investigation and claims
process, that came to involve several other contractors and entities not party to the lawsuit,
Trinity eventually filed suit in the District
Court of Oklahoma County on February 18,
2011. In its First Amended Petition, filed on
March 9, 2011, Trinity asserted bad faith and
breach of contract claims against Brotherhood
for its handling and investigation of Trinity’s
claim. Trinity also alleged bad faith and negligence on the part of Sooner Claims, alleging
that Sooner: 1) assigned an adjuster to Trinity’s
claim when it knew or should have known that
the adjuster was inadequately skilled for
adjusting Trinity’s type of commercial loss; 2)
allowed its adjuster to drag out adjustment for
over one year; 3) allowed its adjuster to “low
ball” Trinity’s loss on more than one occasion
only to increase the covered loss when Trinity
objected and hired third-parties; and 4) allowed
its adjuster to engage in inadequate and incomplete adjustment of Trinity’s loss, to Trinity’s
detriment.
¶3 On January 15, 2010, Brotherhood retained
Sooner Claims Services, Inc. (Sooner), as an
independent adjuster to investigate Trinity’s
claim, pursuant to the provisions of a Limited
Assignment sent to Sooner on the same day.
The Limited Assignment provided, among
other things, that Sooner was: 1) not to make
coverage commitments to the insured; 2) not to
send written correspondence to the insured
except as necessary to confirm appointments,
¶6 After discovery and other proceedings in
the trial court, Sooner filed two motions for
summary judgment. In its First Motion for
Summary Judgment, filed on January 14, 2014,
Sooner argued that it was entitled to judgment
as a matter of law because it owed no duty to
Trinity that would subject it to liability for bad
faith or negligent adjustment of Trinity’s claim.
Sooner also filed a Motion for Partial Summary
Judgment on the Issue of Damages on January
I.
FACTS AND PROCEDURAL HISTORY
2690
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Vol. 85 — No. 34 — 12/20/2014
21, 2014, arguing: 1) as a corporation, Trinity
could not maintain a claim for emotional damages; and 2) Trinity could not establish any
damages suffered as a result of any act or omission of Sooner or its adjuster Steve Hall.
¶7 The trial court entered summary judgment for Sooner on August 4, 2014. The trial
court: 1) sustained Sooner’s First Motion for
Summary Judgment to the extent Trinity was
attempting to maintain a claim against Sooner
for bad faith; 2) denied Sooner’s First Motion
for Summary Judgment with respect to Trinity’s claim of gross negligence; 3) Sustained
Sooner’s Motion for Partial Summary Judgment on the Issue of Damages; and 4) dismissed all claims asserted by Trinity against
Sooner with prejudice.
¶8 Trinity filed its Petition in Error on July 25,
2014.3 Sooner filed a Counter-Petition in Error
on August 14, 2014, to address the trial court’s
denial of its First Motion for Summary Judgment with respect to Trinity’s claim of gross
negligence. Trinity filed a motion to retain its
appeal for disposition by this Court on July 25,
2014. We granted Trinity’s motion to retain on
August 15, 2014, and the cause as assigned to
this office on August 19, 2014.
II.
Standard of Review
¶9 A moving party is entitled to summary
judgment as a matter of law only when the
pleadings, affidavits, depositions, admissions
or other evidentiary materials establish no
genuine issue of material fact exists and the
moving party is entitled to judgment as a matter of law. Miller v. David Grace, Inc., 2009 OK
49, ¶10, 212 P.3d 1223; Wathor v. Mutual Assurance Administrators, 2004 OK 2, ¶4, 87 P.3d 559.
In reviewing the grant or denial of summary
judgment, this Court views all inferences and
conclusions to be drawn from the evidentiary
materials in a light most favorable to the nonmoving party. Miller, 2009 OK 49, ¶10; Wathor,
2004 OK 2, ¶4. Because a grant of summary
judgment is purely a legal issue, this Court’s
standard of review on appeal is de novo. Miller,
2009 OK 49, ¶10; Carmichael v. Beller, 1996 OK
48, ¶2, 914 P.2d 1051.
III.
Sooner did not Owe Trinity a Duty of Good
Faith and Fair Dealing Because it was a
Stranger to the Insurance Contract and no
Vol. 85 — No. 34 — 12/20/2014
Special Relationship Existed Between it
and Trinity.
¶10 The trial court sustained in part and
denied in part Sooner’s First Motion for Summary Judgment alleging that Sooner owed no
legal duty to Trinity. The trial court sustained
Sooner’s motion to the extent that Trinity was
attempting to maintain a claim against Sooner
for bad faith. On appeal, Trinity contends the
trial court erred because under certain circumstances an independent adjuster may owe a
duty of good faith and fair dealing to individuals insured by its client. Sooner asserts it owed
no duty of good faith and fair dealing to Trinity. We agree.
A. The general rule in Oklahoma is that only
the insurer owes a duty of good faith and fair
dealing to its insured.
¶11 Oklahoma law recognizes an implied
duty on the part of an insurer to deal fairly and
act in good with regard to its insured. Timmons
v. Royal Globe Ins. Co., 1982 OK 97, ¶12, 653 P.2d
907; Christian v. American Home Assur. Co., 1977
OK 141, ¶25, 577 P.2d 899. In Timmons, this
Court examined whether this duty might be
extended to cover individuals who were not a
party to the contract between the insurer and
the insured, and determined that it could not.
1982 OK 97, ¶¶16-17. Citing precedent from
California on which this Court’s recognition of
the implied covenant of good faith and fair
dealing was originally based, this Court in Timmons determined that as non-insurer defendants were not parties to the agreement for
insurance, they could not be subject to an
implied duty of good faith and fair dealing:
In Christian, supra, this Court analyzed and
quoted at length from Gruenberg v. Aetna
Ins. Co., 9 Cal.3d 566, 108 Cal.Rptr. 480, 510
P.2d 1032 (1973). Therein this Court termed
Gruenberg, supra, to be a “clear analysis” of
the implied duty of fair dealing and good
faith at p. 904. Gruenberg, supra, itself specifically examined the liability of an agent
for damages for violation of the implied
covenant of fair dealing and good faith
inuring in a contract of insurance:
“Obviously, the non insurer defendants
were not parties to the agreement for
insurance; therefore, they are not, as
such, subject to an implied duty of good
faith and fair dealing....”
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2691
Later the California Court dealt with this
precise issue, Egan v. Mutual of Omaha Ins.
Co., 24 Cal.3d 809, 620 P.2d 141, 169 Cal.
Rptr. 691 (1979), holding at 620 P.2d p. 149,
169 Cal.Rptr. p. 699:
“Segal and McEachen acted as Mutual’s
agents. As such they are not parties to the
insurance contract and not subject to the
implied covenant. Because the only
ground for imposing liability on either
Segal or McEachen is breach of that
promise, the judgments against them as
individuals cannot stand.”
As this jurisdiction has embraced the
implied covenant spoken to in Gruenberg,
supra, it is clear that the cause will not lie
against a stranger to the contract.
Timmons, 1982 OK 97, ¶17 (emphasis added).
B. An exception to the general rule exists
when a non-party to the insurance contract
acts sufficiently like an insurer so that a special relationship can be said to exist between
the third-party and the insured.
¶12 While the general rule is that the implied
covenant of good faith and fair dealing will not
lie against third parties who are strangers to
the insurance contract, there are exceptions to
the rule. See Badillo v. Mid Century Ins. Co., 2005
OK 48, 121 P.3d 1080; Wathor v. Mutual Assurance Administrators, Inc., 2004 OK 2, 87 P.3d 559;
Wolf v. Prudential Ins. Co. of America, 50 F.3d 793
(10th Cir. 1995). In Wolf v. Prudential Ins. Co. of
America, the United States Court of Appeals for
the Tenth Circuit determined that Timmons
should not be dispositive in situations involving third party entities, such as a plan administrator, with far more involvement in the insurance process than the agent of the insurer in
Timmons. Wolf, 50 F.3d at 797. Rather, the Tenth
Circuit determined that lack of contractual
privity alone was not a total bar, and “the
analysis should focus more on the factual question of whether the administrator acts like an
insurer such that there is a ‘special relationship’ between the administrator and insured
that could give rise to a duty of good faith.”
Wolf, 50 F.3d at 797.
¶13 The Wolf court noted that the plan
administrator in that cause had a high degree
of involvement with the insured and control
over matters covered by the insurance contract.
50 F.3d at 797-98. Specifically, the administrator: 1) investigated and serviced claims; 2) had
2692
primary control over benefit determinations
(including intermediate appeals); 3) received a
percentage of the premiums paid for participant coverage, which increased as losses
decreased; and 4) assumed much of the risk for
its determinations. Wolf, 50 F.3d at 798. The
court concluded the administrator
looks much like an insurer…. We therefore
do not see Prudential as a “stranger” to the
insurance contracts in this case. It was contractually obligated to administer the plans,
and its contractual obligation directly benefitted plaintiffs as third-party beneficiaries of its agreements with the Annuity
Board. The contractual obligation combines with the fact that Prudential’s benefit
determinations could at least indirectly
affect its profits and losses to create a special relationship between Prudential and
plaintiffs. In other words, on the facts as
presented by plaintiffs, Prudential had the
power, motive and opportunity to act
unscrupulously.
Wolf, 50 F.3d at 798.
¶14 This Court considered the Wolf decision
in Wathor v. Mutual Assurance Administrators,
Inc., 2004 OK 2, 87 P.3d 559. This Court agreed
with the basic premise of Wolf and noted that
the imposition of a nondelegable duty on the
insurer does not necessarily preclude an action
by an insured against a plan administrator for
breach of an insurer’s duty of good faith.
Wathor, 2004 OK 2, ¶9. This Court determined:
In a situation where a plan administrator
performs many of the tasks of an insurance
company, has a compensation package that
is contingent on the approval or denial of
claims, and bears some of the financial risk
of loss for the claims, the administrator has
a duty of good faith and fair dealing to the
insured.
Wathor, 2004 OK 2, ¶12. However, applying the
rule of Wolf to the specific facts of Wathor, we
determined that the third-party administrator
in Wathor was not so entangled with the insured
so as to create a special relationship that would
subject them to the duty of good faith and fair
dealing. Wathor, 2004 OK 2, ¶13. Specifically,
this Court determined:
[l]ike the plan administrator in Wolf, MAA
unquestionably performed some of the
tasks of an insurance company in its claims
handling process. However, in contrast to
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Vol. 85 — No. 34 — 12/20/2014
the facts in Wolf, MAA’s compensation
package was not tied to the approval or
denial of claims but was instead a flat fee
based on the number of participants in the
Plan. Likewise, MAA did not share the risk
of loss with the Plan if losses increased to a
certain level, and did not underwrite the
entire risk if losses got even higher. In other
words, under the facts presented in this case,
MAA had neither the power, the motive, nor
the opportunity to act unscrupulously.
Wathor, 2004 OK 2, ¶13.
¶15 In Badillo v. Mid Century Insurance Co.,
2005 OK 48, 121 P.3d 1080, this Court reached
the opposite conclusion and determined that a
third party did owe the insured a duty of good
faith and fair dealing. That cause involved two
affiliated companies under the umbrella of the
Farmers Insurance Group that were so similar
as to be nearly indistinguishable, though they
nominally had separate functions. See Badillo,
2005 OK 48, ¶¶5, 53-55. The trial court treated
the two entities as one for purposes of liability
and ruled as a matter of law that they both
owed the insured a duty of good faith and fair
dealing. Badillo, 2005 OK 48, ¶54. This Court
determined the trial court committed no error
by treating the entities as indistinguishable for
purposes of the implied duty of good faith and
fair dealing, noting:
[w]e believe no reasonable person viewing
the evidence, and the reasonable inferences
therefrom, could conclude anything other
than FIE acted as if it was the insurer in its
handling of the Smith claim and that it had
a special relationship with insured such
that it, like MCIC, was subject to the duty
of good faith and fair dealing toward him.
Badillo, 2005 OK 48, ¶55.4
C. Sooner did not owe Trinity a duty of good
faith and fair dealing as a third-party insurance adjuster because it did not act sufficiently like an insurer so as to create a special
relationship with Trinity.
¶16 Wolf, Wathor, and Badillo all stand for the
proposition that this Court will only apply the
duty of good faith and fair dealing to a third
party stranger to the insurance contract when
the third party acts so like an insurer that it
develops a special relationship with the
insured, Badillo, 2005 OK 48, ¶5, essentially giving the third party the power, motive, and
Vol. 85 — No. 34 — 12/20/2014
opportunity to act unscrupulously. Wathor,
2004 OK 2, ¶13.
¶17 In its response to Sooner’s motion for
summary judgment, Trinity argued that such a
special relationship did exist, because it alleged
Sooner was asked to do more by Brotherhood
than some insurers require from their independent adjusters, including giving advice to
Brotherhood on coverage determinations recommending the setting of reserves.5 However,
as this Court stated in Wathor, merely performing some of the tasks of an insurance company
in the claims handling process is not sufficient to
subject a third party to the duty of good faith
and fair dealing.6 Sooner was not a plan administrator with primary control over benefit determinations and intermediate appeals. See Wathor,
2004 OK 2, ¶10; Wolf , 50 F.3d at 797-98. Sooner’s
compensation was not tied to premiums paid,
nor did it increase or decrease in relation to
losses, and Sooner did not share the risk with
Brotherhood. See Wathor, 2004 OK 2, ¶10.
¶18 Trinity confuses the nature of the “special relationship” standard elucidated in this
Court’s prior cases. For a non-party to the
insurance contract to be subjected to the duty
of good faith and fair dealing, a special relationship must arise between it and the insured.
While Trinity alleges that Sooner may have
gone beyond the terms of its Limited Assignment, it is evident from the record that Sooner
did not step into Brotherhood’s shoes for purposes of interacting with Trinity such that it
developed a special relationship with Trinity
on par with that shared by parties to an insurance contract.
¶19 Sooner’s authority with regard to Trinity
was limited, and the facts of this case are distinguishable from situations involving administrators where the line dividing who is a third
party and who is the insurer has blurred. All of
Trinity’s allegations and the available record
indicate that the scope of Sooner’s responsibilities may have been enlarged with respect to
what Brotherhood asked Sooner to do for it,
not with regard to Sooner’s relationship with
Trinity. Reviewing all inferences and conclusions to be drawn from the underlying and
uncontested facts in a light most favorable to
Trinity, Sooner was entitled to summary judgment as a matter of law on the grounds that it
owed no duty of good faith and fair dealing to
Trinity.
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2693
IV.
Sooner Owed No Duty to Trinity Concerning
its Adjustment of Trinity’s Claim
¶20 The trial court denied Sooner’s First
Motion for Summary Judgment with respect to
Trinity’s claim of gross negligence against
Sooner. In its Counter-Petition in Error, Sooner
asserts the trial court erred by denying in part
its First Motion for Summary Judgment and
asserts it owed no duty to Trinity that would
subject it to a claim of gross negligence for the
manner in which it investigated and adjusted
Trinity’s claim. Whether an insured party can
maintain a separate tort action for negligence
against an independent insurance adjuster
employed by the insurer is an issue of first
impression for this Court.
¶21 The threshold question in any action for
negligence is the existence of a duty. Wood v.
Mercedes-Benz of Oklahoma City, 2014 OK 68, ¶7,
--- P.3d ---; Miller v. David Grace, Inc., 2009 OK
49, ¶11, 212 P.3d 1223; Bray v. St. John Health
Sys., Inc., 2008 OK 51, ¶6, 187 P.3d 721. The
existence of a legal duty is a question of law for
the court. Wood, 2014 OK 68, ¶7; Miller, 2009 OK
49, ¶11. Where the defendant did not owe a
duty of care to the plaintiff, there can be no
liability for negligence as a matter of law. Lowery v. Echostar Satellite Corp., 2007 OK 38, ¶12,
160 P.3d 959; First Nat’l Bank in Durant v. Honey
Creek Entertainment Corp., 2002 OK 11, ¶20, 54
P.3d 100.
¶22 A legal duty is an expression of the sum
total of those considerations of policy which
lead the law to say that the particular plaintiff
is entitled to protection. Iglehart v. Bd. of County
Com’rs of Rogers County, 2002 OK 76, n. 17, 60
P.3d 497. While the question of duty is usually
presented in terms of a particular actor’s obligation, this Court has previously noted that the
essential question is whether the plaintiff’s
interests are entitled to protection against the
defendant’s conduct. Morales v. City of Oklahoma
City ex rel. Oklahoma City Police Dept., 2010 OK 9;
Wofford v. Eastern State Hosp., 1990 OK 77, ¶10,
795 P.2d 516. The foreseeability of harm to the
potential plaintiffs as a result of an individual’s
conduct is one of the most important considerations used to determine the existence of a
legal duty. Morales, 2010 OK 9, ¶21; Iglehart,
2002 OK 76, ¶10. However, foreseeability is just
one of many factors that this Court considers
and other factors include: 1) the degree of certainty of harm to the plaintiff; 2) the moral
blame attached to defendant’s conduct; 3) the
2694
need to prevent future harm; 4) the extent of
the burden to the defendant and consequences
to the community of imposing the duty on
defendant; and 5) availability of insurance for
the risk involved. Morales, 2010 OK 9, n. 32;
Lowery, 2007 OK 38, n. 4.
¶23 A majority of courts in other states have
held that an insured cannot maintain a separate
tort action for negligence against an independent insurance adjuster hired by the insurer
because the independent adjuster owes the
insured no duty of care.7 A minority of state
courts take the opposite position and have determined that in similar factual circumstances an
independent adjuster does owe a duty of care
to the insured to not be negligent in its investigation or adjustment of the claim.8
A. In Brown v. State Farm and Casualty Company, 2002 OK CIV APP 107, 58 P.3d 217, the
Court of Civil Appeals adopted the minority
view that an independent insurance adjuster
hired by an insurer may owe a duty of care to
the insured.
¶24 Trinity encourages this Court to adopt
the minority viewpoint that an independent
insurance adjuster hired by the insurer may
owe a duty of care to the insured, and relies
heavily upon a decision by the Oklahoma
Court of Civil Appeals, Division III: Brown v.
State Farm and Casualty Company, 2002 OK CIV
APP 107, 58 P.3d 217 (cert. denied Oct. 15,
2002).9 In that cause, the Court of Civil Appeals
adopted the view of a minority of courts in
other states that independent insurance investigators owe a duty to the insured as well as the
insurer to conduct a fair and reasonable investigation of an insurance claim. Brown, 2002 OK
CIV APP 107, ¶19.
¶25 The court in Brown examined prior decisions of this Court addressing the existence of
a duty in negligence actions:
¶ 7 “Oklahoma courts have recognized
that the existence of a duty depends on the
relationship between the parties and the
general risks involved in the common
undertaking.” Wofford, ¶ 10, 795 P.2d at
519. “Duty of care is not a concept that
arises only by statute.... Whenever a person
is placed in such a position with regard to
another that it is obvious that if he did not
use due care in his own conduct he will
cause injury to the other, the duty at once
arises to exercise care commensurate with
the situation in order to avoid such injury.”
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Vol. 85 — No. 34 — 12/20/2014
Id., citing Union Bank of Tucson v. Griffin,
1989 OK 47, ¶ 13;771;P.2d;219;222.
¶ 8 The most important consideration in
establishing duty is foreseeability. Wofford,
¶ 11, 795 P.2d at 519. “As a general rule, ‘a
defendant owes a duty of care to all persons who are foreseeably endangered by
his conduct with respect to all risks which
make the conduct unreasonably dangerous.’ “ Id., citing Tarasoff v. Regents of Univ.
of Cal., 17 Cal.3d 425, 131 Cal.Rptr. 14,
22;551;P.2d;334;342 (1976). “Foreseeability
as an element of duty establishes a ‘zone of
risk’, that is, whether the conduct ‘creates a
generalized and foreseeable risk of harming others.’ “ Smith v. Speligene, 1999 OK
CIV APP 95, ¶ 11;990;P.2d;312;315, citing
Delbrel v. Doenges Bros. Ford, Inc., 1996 OK
36, ¶ 8;913;P.2d;1318;1321 and McCain v.
Florida Power Corp., 593 So.2d 500, 503.
2002 OK CIV APP 107, ¶¶7-8.
The Brown court also discussed several prior
decisions of this Court examining what duty
was owed, if any, by professionals to third parties in a variety of factual settings that are distinguishable from the instant cause.10 Particularly
persuasive to the Brown court was the decision
of the New Hampshire Supreme Court in Morvay v. Hanover Ins. Companies, 127 N.H. 723, 506
A.2d 333 (1986).11
B. The law in Oklahoma is in accord with the
majority view that an independent insurance
adjuster hired by an insurer does not owe a
duty of care to the insured.
¶26 Sooner encourages this Court to adopt
the view endorsed by the majority of other
states that have considered the issue, as well as
by some federal district courts in Oklahoma.12
In the unreported case Wallace v. Allstate Ins.
Co., No. CIV-12-0310-HE, 2012 WL 2060664
(W.D. Okla. June 7, 2012), the United States
District Court for the Western District of Oklahoma determined that under Oklahoma law an
independent insurance adjuster hired by an
insurer to investigate a claim does not owe a
duty to the insured to conduct a fair and reasonable investigation.
¶27 The court in Wallace noted that the decision of this Court relied upon in Brown concerned an architect, bond counsel, and
accounting firm, all of whom were highly
skilled professionals who could reasonably
expect third parties to rely upon their work.
Vol. 85 — No. 34 — 12/20/2014
Wallace, 2012 WL 2060664, *1. The Wallace
court correctly noted that different circumstances apply where insurance adjusters are
concerned, stating:
[i]n the context of an insurance claim, it is
“[t]he insurer [that] contractually controls
the responsibilities of its adjuster and
retains the ultimate power to deny coverage or pay a claim. Subjecting adjusters to
potential tort liability from insureds could
create conflicting loyalties with respect to
the adjusters’ contractual obligations, given
that insureds and insurers often disagree
on the extent of coverage or the amount of
damages.” Hamill v. Pawtucket Mut. Ins. Co.,
892 A.2d 226, 257 (Vt.2005) (internal citation omitted).
Wallace, 2012 WL 2060664, *2.
Put more succinctly, “’[c]reating a separate
duty from the adjuster to the insured would
thrust the adjuster into what could be an irreconcilable conflict between such duty and the
adjuster’s contractual duty to follow the
instructions of its client, the insurer.’” Wallace,
2012 WL 2060664, *2 (quoting Meineke v. GAB
Business Servs., Inc., 991 P.2d 267, 271 (Az. Ct.
App. 1999)).
¶28 While the decisions of this Court relied
upon by the Court of Civil Appeals in Brown
correctly indicate that this Court does not consider lack of contractual privity a bar to the
existence of a legal duty for purposes of negligence, the Wallace court is correct that public
policy and other factors besides foreseeability
counsel against imposing a legal duty to the
insured with regards to negligence.13
¶29 The relationship between and insurer
and its insured is defined and governed by the
insurance policy and its accompanying implied
covenant of good faith and fair dealing. Hamill
v. Pawtucket Mut. Ins. Co., 2005 VT 133, ¶13, 892
A.2d 226. See Wathor, 2004 OK 2,¶¶6-7; Christian, 1977 OK 141, ¶24-25. This court stated
pointedly in Wathor that this duty is non-delegable and that an insurer can be held liable for
breach of the duty due to the actions of its
independent contractors or agents. 2004 OK 2,
n. 6. The Court stated:
[a]n insurer has a non-delegable duty of
good faith while performing the functions
of claims management, adjustment and
settlement. This duty requires the insurer
to take positive steps to adequately investi-
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gate, evaluate, and respond to its insureds’
claims. An insurer may employ an agent or
an independent contractor to perform these
functions, but this does not absolve the
insurer of its own non-delegable duty. If
the agent or independent contractor fails
to adequately perform the functions, the
insurer is liable, not under the doctrine of
respondeat superior, but because of its
own failure to comply with its non-delegable duty of good faith.
Wathor, 2004 OK 2, n. 6. See also Timmons, 1982
OK 97, ¶17 (acts of agents may be material to a
determination of the existence of a breach of an
insurer’s duty of good faith and fair dealing).
¶30 Even if harm to the insured through an
adjuster’s negligence might be foreseeable to
the adjuster, from a policy standpoint it makes
little sense to hold that the adjuster has an
independent duty when the insurer itself is
subject to liability for the adjuster’s mishandling of claims in actions alleging breach of
contract and bad faith. The special relationship
between the insurer and insured, and the
implied duty of good faith and fair dealing on
the part of the insurer, represent a unique factual departure from the decisions of this Court
relied upon by the Court of Civil Appeals in
Brown, discussed above.14 If the insurer mishandles a claim due to the actions of its independent adjuster, the insured may be entitled
to recover compensatory damages for breach
of contract, or damages in tort if the insurer’s
actions rise to the level of bad faith.
¶31 The existence of a separate legal duty on
the part of the adjuster in these circumstances
would allow for potential double recovery, permitting the insured to recover in tort both for
breach of contract or breach of the duty of good
faith and fair dealing by the insurer — caused
by an adjusters negligent conduct — and from
the adjuster for the same conduct. In the words
of the Supreme Court of Vermont in Hamill: “in
most cases, imposing tort liability on independent adjusters would create a redundancy
unjustified by the inevitable costs that eventually would be passed on to insureds.” 2005 VT
133, ¶14 (citing Sanchez v. Lindsey Morden
Claims Services, Inc., 84 Cal.Rptr.2d 799, 802-03
(Cal. Ct. App. 1999)).15
V.
DAMAGES
Damages. In its motion, Sooner argued that it
was entitled to judgment as a matter of law
because: 1) a corporation cannot maintain a
claim for emotional damages; and 2) Trinity
could not establish any damages as a result of
an act or omission of Sooner or its adjuster
Steve Hall. As this Court has determined that
Sooner owed no legal duty to Trinity that
would subject it to liability in tort, either for
bad faith or negligence, Sooner is entitled to
judgment as a matter of law and this Court
need not address the issue of damages. See
Lowrey, 2007 OK 38, ¶12, 160 P.3d 959 (“The
existence of a duty of care is the threshold
question in any negligence action.”); Badillo v.
Mid Century Ins. Co., 2005 OK 48, ¶25, 121 P.3d
1080 (noting the prima facie case for breach of
the duty of good faith and fair dealing requires
plaintiff establish the defendant owed them
such a duty).
CONCLUSION
¶33 When possible an appellate court must
hand down the judgment, which in its opinion,
the trial court should have rendered. Hall v.
CEO Group, Inc., 2014 OK 22, ¶17, 324 P.3d 399;
Dixon v. Bhuiyan, 2000 OK 56, ¶9, 10 P.3d 888. If
the trial court reached the correct result but for
the wrong reasons, its judgment is not subject
to reversal. Hall, 2014 OK 22, ¶17; Dixon, 2000
OK 56, ¶9; In the Matter of the Estate of Bartlett,
1984 OK 9, ¶4, 680 P.2d 369. Rather, this Court
is not bound by the trial court’s reasoning and
may affirm the judgment below on a different
legal rationale. Hall, 2014 OK 22, ¶17; Dixon,
2000 OK 56, ¶9; McMinn v. City of Oklahoma
City, 1997 OK 154, ¶11, 952 P.2d 517.
¶34 The trial court did not err by entering
summary judgment in favor of Sooner, though
it did so on the basis of Sooner’s damages
claims rather than Sooner’s assertion that it
owed Trinity no legal duty. This Court determines that: 1) Sooner was not subject to the
implied covenant of good faith and fair dealing
arising from the insurance contract between
Trinity and Brotherhood; and 2) owed Trinity
no legal duty that would allow Trinity to recover in tort for any negligence in Sooner’s investigation and adjustment of the claim. Accordingly, the trial court’s August 4, 2014, grant of
summary judgment in favor of Sooner is
affirmed.
¶32 The trial court sustained Sooner’s Motion
for Partial Summary Judgment on the Issue of
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Vol. 85 — No. 34 — 12/20/2014
JUDGMENT OF THE TRIAL COURT IS
AFFIRMED. CAUSE DISMISSED.
REIF, V.C.J., KAUGER, WATT, WINCHESTER, and COMBS, JJ., concur.
TAYLOR, J., concurs in result.
COLBERT, C.J., and EDMONDSON, J., concur in part and dissent in part.
GURICH, J., not participating.
1. Trinity also named Brotherhood Mutual Insurance Services, LLC
as a defendant, before dismissing it without prejudice early on in proceedings at the trial court level. Regardless, neither Brotherhood
Mutual entity is a party to this appeal, and “Brotherhood” is used for
convenience to refer to Trinity’s insurer.
2. This argument appears flawed, given that the express terms of
the Limited Assignment indicate Sooner was not supposed to make
coverage determinations to the insured. If a loss was possibly not
covered, Sooner was in fact obligated under the express terms of the
assignment to provide a descriptive report to Brotherhood so it could
make a coverage determination. The deposition taken from Steven
Hall clearly indicates he gave his opinion to Brotherhood, Sooner’s
client, when he was asked for it.
3. On August 1, 2014, this Court ordered Trinity to file an amended
petition in error, with the trial court’s order granting summary judgment attached as Exhibit A. Trinity filed its Amended Petition in Error
on August 8, 2014.
4. The Court in Badillo also noted that whether the duty of good
faith and fair dealing is applicable to a non-party to the insurance
contract need not always be a question of fact for a jury to decide:
[w]here only one inference can reasonably be drawn from the
evidence as to a material issue relating to a party’s claim or
defense, it is not error for a trial court to remove said issue from
the jury’s consideration and to direct a verdict thereon. See Agee
v. Gant, 1966 OK 31, 412 P.2d 155, 156 (Third Syllabus by the
Court)(question of negligence or no negligence is one of law for
court where but one inference can reasonably be drawn from the
evidence as to said issue). Nor is the question of whether an
entity other than the named insurer on the applicable insurance policy may or may not be subject to the duty of good faith
and fair dealing toward an insured always a question of fact
for jury consideration. See Wathor (affirming summary judgment in favor of third-party administrator for a self-funded
county health insurance program based on determination the
undisputed facts presented entitled said administrator to judgment as a matter of law, as it could not be deemed to have sufficiently acted like an insurer to fasten a special relationship
between it and the insured that would give rise to a duty of good
faith and fair dealing on the part of the administrator toward the
insured).
2005 OK 48, ¶55 (emphasis added).
5. Trinity also alleged general collusion between Brotherhood and
Sooner to manipulate estimates and bring down the cost of repairs, but
these allegations are essentially a restatement of Trinity’s claims that
Sooner acted in bad faith, rather than effective indications that Sooner
acted sufficiently like an insurer to create a special relationship with
Trinity.
6. This Court stated in Wathor:
Like the plan administrator in Wolf, MAA unquestionably
performed some of the tasks of an insurance company in its
claims handling process. However, in contrast to the facts in
Wolf, MAA’s compensation package was not tied to the approval
or denial of claims but was instead a flat fee based on the number
of participants in the Plan. Likewise, MAA did not share the risk of
loss with the Plan if losses increased to a certain level, and did not
underwrite the entire risk if losses got even higher. In other words,
under the facts presented in this case, MAA had neither the power,
the motive, nor the opportunity to act unscrupulously.
2004 OK 2, ¶13 (emphasis added).
7. See, e.g., Akpan v. Farmers Ins. Exchange, Inc., 961 So.2d 865 (Ala.
Civ. App. 2007) (determining independent adjuster hired by insurer
owed no duty to insureds and could not be held liable on negligence
theory); Hamill v. Pawtucket Mut. Ins. Co., 2005 VT 133, 892 A.2d 226
(holding independent adjusters owed no duty to insured and were not
liable for negligent handling of insurance claim); Charleston Dry Clean-
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ers & Laundry, Inc. v. Zurich American Ins. Co., 355 S.C. 614, 586 S.E.2d
586 (S.C. 2003) (independent insurance adjuster owes to insured no
general duty of care); Meineke v. GAB Business Services, Inc. 195 Ariz.
564, 991 P.2d 267 (Ariz. Ct. App. 2000) (determining relationship
between adjuster and insured is sufficiently attenuated by the insurer’s control over the adjuster that adjuster owes no legal duty to
insureds and is not subject to negligence liability); Sanchez v. Lindsey
Morden Claims Services, Inc., 72 Cal.App.4th 249, 84 Cal.Rptr.2d 799
(Cal. Ct. App. 1999) (holding that policy concerns as well as the general law of agency militate against imposing a duty of care owed by
insurer-retained adjusters to insureds); Dear v. Scottsdale Ins. Co., 947
S.W.2d 908 (Tex. App. 1997) (holding that insured may not maintain
negligence action against adjuster because adjuster’s duties are contractual ones owed solely to insurer) (disapproved on other grounds
by Apex Towing Co. v. Tolin, 41 S.W.3d 118 (Tex. 2001)); King v. Nat’l
Security Fire and Casualty Co., 656 So.2d 1338 (Fla. Dist. Ct. App. 1995)
(holding that insured may not bring simple negligence action against
independent insurance adjuster because adjuster’s duty arises out of
the underlying contract between adjuster and insurer and is owed to
insurer only).
8. See, e.g., Morvay v. Hanover Ins. Co., 127 N.H. 723, 506 A.2d 333
(N.H. 1986) (independent agents hired by insurer owed a duty to both
insurer and insured to conduct a fair and reasonable investigation);
Continental Ins. Co. v. Bayless and Roberts, Inc., 608 P.2d 281 (Alaska
1980) (holding insurance adjuster could be liable in negligence directly
to insured for failure to adequately investigate wrongful death claim).
9. Opinions released for publication by order of the Court of Civil
Appeals, are persuasive only, and lack precedential effect. Hollaway v.
UNUM Life Ins. Co. of America, 2003 OK 90, n. 6, 89 P.3d 1022.
10. Cases discussed by the Court of Civil Appeals included: Keel v.
Titan Const. Corp, 1981 OK 148, 639 P.2d 148; Bradford Securities Processing Services, Inc. v. Plaza Bank and Trust, 1982 OK 96, 653 P.2d 188; Stroud
v. Arthur Andersen & Co., 2001 OK 76, 37 P.3d 783.
11. Morvay, like the instant cause and the cause before the Court of
Civil Appeals in Brown, concerned what duty, if any, was owed by an
independent insurance investigator to an insured who was not party
to its contract with the insurer. 127 N.H. at 725-726. The Morvay court
first noted that investigators are under a general duty to use due care
in the performance of their work. 127 N.H. at 725. The court then determined that it was foreseeable that negligence on the part of the investigator might harm the insured:
In this case, Verity and Roberts were not in privity with the plaintiffs. However, they were fully aware that the plaintiffs could be
harmed financially if they performed their investigation in a
negligent manner and rendered a report to Hanover that would
cause the company to refuse payment to the plaintiffs. Verity and
Roberts were also aware that there was a mutual duty of fair
dealing between Hanover and the plaintiffs. Under these circumstances, we hold that the plaintiffs have stated a cause of action
in negligence against Verity and Roberts. See Continental Ins. Co.
v. Bayless & Roberts, Inc., 608 P.2d 281 (Alaska 1980).
Although the contractual relationship exists solely between the
insurer and the investigators, and the investigators may give
reports only to the insurer, the insured is a foreseeably affected
third party. If the investigators’ report indicates a fire of incendiary nature, the insured’s contract with the insurer may be unenforceable. If, on the other hand, the report indicates that the fire
is not of an incendiary nature, the insured may expect the contract to be honored. Both the insured and the insurer have a stake
in the outcome of the investigation. Thus, we hold that the
investigators owe a duty to the insured as well as to the insurer
to conduct a fair and reasonable investigation of an insurance
claim and that the motion to dismiss should not have been
granted.
Morvay, 127 N.H. at 726.
12. Federal court decisions are not binding or controlling upon this
Court when construing Oklahoma law. Johnson v. Ford Motor Co., 2002
OK 24, ¶26, 45 P.3d 86.
13. The court in Wallace repeatedly refers to “simple negligence,”
noting that it makes little sense to hold an adjuster liable for simple
negligence when a greater magnitude of culpability is necessary to
hold the insurer itself liable for violation of the duty of good faith and
fair dealing. The reason for the Wallace court’s distinction is this
Court’s language in Badillo, where we stated:
To the extent American Fidelity & Casualty Co. v. L.C. Jones Trucking
Co., 321 P.2d at 687, may have implied that a simple negligence
standard was approved or adopted as to the level of culpability
necessary to be shown for liability to attach to an insurer for
breach of the duty of good faith and fair dealing in relation to the
handling of a third-party claim made against the insured, i.e., the
situation involved here, that case is expressly overruled, but only
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2697
to such extent. In our view, under Christian and later cases, the
minimum level of culpability necessary for liability against an
insurer to attach is more than simple negligence, but less than the
reckless conduct necessary to sanction a punitive damage award
against said insurer. In PART VII, infra, we discuss the minimum
level of culpability necessary to warrant a punitive damage
recovery against an insurer for breach of the duty of good faith
and fair dealing.
2005 OK 48, ¶28.
Any intense focus on the degree of negligence (Trinity alleges gross
negligence, the Wallace court refers to “simple negligence”) is misplaced. Whereas the existence of a legal duty is a question of law, the
degree of negligence, which can be considered the magnitude of the
breach of that duty, is a question of fact and a separate issue from
whether a legal duty existed in the first place. See Fox v. Oklahoma
Memorial Hosp., 1989 OK 38, ¶7, 774 P.2d 459; NMP Corp. v. Parametric
Technology Corp., 958 F.Supp 1536, 1546 (N.D. Okla. 1997) (“gross negligence requires the intentional failure to perform a manifest duty in
reckless disregard of the consequences or in callous indifference to the
life, liberty, or property of another… Thus, gross negligence is the same
as a negligence claim, differing only as to the degree.”); 25 O.S. 2011 §
6 (degrees of negligence defined). At issue on appeal in this cause is
whether Sooner, as an independent insurance adjuster, owed a legal
duty to Trinity, the insured, not the magnitude of their potential breach
of such a duty.
14. These also include, in addition to those cases already discussed,
Lockheart v. Loosen, 1997 OK 103, 943 P.2d 1074 and Brigance v. Velvet
Dove Restaurant, Inc., 1986 OK 41, 725 P.2d 300, both cases that deal
with foreseeability of harm and a legal duty to third parties but without the special circumstances of the insurance contract and unique
relationships between an insured, insurer, and an insurer’s independent adjuster. Lockhart involved a wife’s lawsuit against her husband’s
lover after the wife contracted genital herpes. 1997 OK 103, ¶2. Brigance
involved a parent’s negligence suit against a vendor of alcoholic beverages for serving an intoxicated driver who killed the parent’s minor
child. 1986 OK 41, ¶0.
15. Much like the plaintiff in Hamill, Trinity has already settled its
claims against Brotherhood, and there is no indication the settlement is
somehow inadequate to cover its losses. See Hamill, 2005 VT 133, n.2.
2014 OK 107
IN THE MATTER OF THE
REINSTATEMENT OF: JOHN MARION
WYLIE, TO MEMBERSHIP IN THE
OKLAHOMA BAR ASSOCIATION AND
TO THE ROLL OF ATTORNEYS.
No. SCBD 6051. December 8, 2014
ORDER OF REINSTATEMENT TO THE
OKLAHOMA BAR ASSOCIATION AND
ROLL OF ATTORNEYS
¶1 John M. Wylie (Petitioner) has petitioned
for reinstatement to membership in the Oklahoma Bar Association (OBA) and to the Roll of
Attorneys pursuant to Rule 11 of the Rules Governing Disciplinary Proceedings, 5 O.S. 2001, ch.
1, app. 1-A (RGDP). The OBA, after an investigation, and the Professional Responsibility Tribunal (PRT) after holding a hearing, recommended
reinstatement. The OBA has not received any
objections to Petitioner’s reinstatement.
¶2 Petitioner was admitted to the practice of
law in Oklahoma on September 25, 1997. He
practiced law until July 2007 when he was voluntarily admitted to Red Rock Crisis Intervention Unit in Norman for inpatient treatment.
He has not practiced law since that nine-day
2698
stay. In the months following his inpatient
treatment, three clients filed written grievances
with the Oklahoma Bar Association, all alleging neglect of client matters.
¶3 In July 2008, Petitioner filed with the
Court a resignation pending disciplinary proceedings. The Petitioner admitted violations of
Rules 1.3 and 5.2 of the Rules Governing Disciplinary Proceedings and Rules 1.3, 1.4 and 1.5 of
the Oklahoma Rules of Professional Conduct, as
well as his “oath as an attorney.” In each of the
three client grievances, the Petitioner failed to
communicate with his clients in a timely manner. In all three instances, Petitioner refunded
fees and no monies were paid on his behalf from
the OBA’s Client Security Fund.
¶4 Since July 2007, the Petitioner has been
consistently treated for bi-polar disorder, the
condition which precipitated his actions resulting in client grievances and ultimately his resignation. After his resignation, the Petitioner
applied for Social Security Disability benefits
for his bipolar disorder. This request was
approved and the Social Security Administration classified him as disabled.
¶5 Since resigning from the practice of law,
the Petitioner has worked as a convenience
store clerk and as a paralegal. He has either
refunded or attempted to refund all outstanding unearned fees back to the clients who filed
grievances. No monies were spent from the
OBA’s Client Security Fund on his behalf.
¶6 At Petitioner’s request, the Social Security
Administration reevaluated his case and determined in March 2014 that he was no longer
disabled due to his treatment and improvement with regard to his bipolar disorder.
¶7 Since resigning, Petitioner has been
involved with Lawyers Helping Lawyers on a
regular and voluntary basis, benefitting both
himself and the participants.
¶8 Petitioner has not practiced law and has
entered no appearances in any Oklahoma
courts since his resignation. He has complied
with Rule 9.1, Rules Governing Disciplinary
Proceedings.
¶9 The record shows Petitioner is of good
moral character. See RGDP at R. 11.5(a). Witnesses testifying at the PRT hearing speak
highly of the Petitioner’s honesty and integrity.
See RGDP at R. 11.4.
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Vol. 85 — No. 34 — 12/20/2014
¶10 Petitioner has regularly read the Oklahoma Bar Journal and completed 3 hours of CLE,
and other non CLE courses or seminars sponsored by the Oklahoma Bar Association. Petitioner has also performed legal research and
writing assignments for practicing attorneys,
who have characterized his work as exemplary.
Petitioner has shown by clear and convincing
evidence that he has the competency and
learning to qualify for readmission and should
not be required to take the Oklahoma Bar
Examination as a condition to reinstatement.
See RGDP at R. 11.5(c).
¶11 Petitioner has satisfied the procedural
requirements for reinstatement. See RGDP at
R. 11.1. The Client Security Fund has not
expended any money on behalf of Petitioner.
See RGDP at R.11.1(b). Petitioner has met his
burden to show by clear and convincing evidence the prerequisites to reinstatement found
in Rule 11.5 of the RGDP.
¶12 It ordered that Petitioner pay the costs of
this proceeding in the amount of $1,728.90.
Petitioner’s request for lenient repayment
terms is granted. Petitioner and OBA are directed to reach a mutually satisfactory agreement
for the repayment of costs, with all costs to be
paid in full within one year of the effective date
of this order.
¶13 It is ordered that Petitioner, John Marion
Wylie, be reinstated to membership in the
Oklahoma Bar Association and that his name
be reinstated to the Roll of Attorneys licensed
to practice law in the State of Oklahoma.
DONE BY ORDER OF THE SUPREME
COURT IN CONFERENCE THIS 8th DAY OF
DECEMBER, 2014.
/s/ Tom Colbert
CHIEF JUSTICE
ALL JUSTICES CONCUR
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2699
Court of Criminal Appeals Opinions
2014 OK CR 17
STATE OF OKLAHOMA, Appellant, v.
LAMONT EUGENE HURT, Appellee.
Case No. S-2013-476. December 4, 2014
SUMMARY OPINION
LUMPKIN, JUDGE:
¶1 Appellee, Lamont Eugene Hurt, was
charged by Information February, 13, 2013, in
the District Court of Tulsa County, Case No.
CF-2013-720, with Failure To Register As Sex
Offender (57 O.S.2011, § 587). The State alleged
that Appellee was subject to the terms and conditions of the Sex Offenders Registration Act
but had failed to register on or about July 20,
2012. Appellee waived preliminary hearing but
filed his Motion to Dismiss and argued that the
Sex Offenders Registration Act (57 O.S.2011, §§
581-590.2) could not be retroactively applied to
him. At a hearing held May 13, 2013, the Honorable Kurt G. Glassco sustained Appellee’s
motion. The State announced its intent to
appeal in open court.
¶2 The State timely filed its written Notice of
Intent to Appeal and Designation of Record
seeking to appeal pursuant to subsections 1
and 5 of 22 O.S.2011, § 1053. Since the District
Court’s order did not suppress or exclude any
evidence, we find that § 1053(5) does not provide a method of appeal for the State in the
present case. As the District Court quashed or
set aside the Information because the facts
stated did not constitute a public offense, we
find that the State’s appeal may properly proceed pursuant to § 1053(1). See Delso v. State,
2013 OK CR 5, ¶¶ 5-7, 298 P.3d 1192, 1193-98; 22
O.S.2011, § 504(4).
¶3 In Proposition One, the State contends
that the District Court erred when it determined that the 2004 and 2007 amendments to
the Sex Offenders Registration Act only applied
prospectively. Because this claim raises a question of statutory interpretation, it presents a
question of law which this Court reviews de
novo. Smith v. State, 2007 OK CR 16, ¶ 40, 157
P.3d 1155, 1169.
¶4 On June 10, 1994, Appellee was convicted
in District Court of Tulsa County Case No.
CF-1993-4114 of Second Degree Rape (Female
2700
Under 16) (21 O.S.Supp.1990, § 1111). The District Court sentenced Appellee to imprisonment for ten (10) years all suspended. At that
time, the Sex Offenders Registration Act
required a sex offender to register with the
Department of Corrections within ten (10)
business days of being convicted or receiving a
suspended sentence if the person was not
incarcerated. 57 O.S.Supp.1989, § 583(A). The
Act required offenders to maintain registration
with the Department of Corrections for a period of ten (10) years from the date of registration. 57 O.S.Supp.1989, § 583(C).
¶5 Appellee’s ten-year registration period
under 57 O.S.Supp.1989, § 583(C) was set to
expire on or about June 23, 2004. Just prior to
that date, the Oklahoma Legislature amended
the mandatory period of registration within §
583(C). 57 O.S.Supp.2004, § 583(C) (Version 2).
Effective April 26, 2004, the statute provided
that: “Except for habitual or aggravated sex
offenders, the person shall be required to register for a period of ten (10) years from the date
of the completion of the sentence . . . .” Id.
¶6 The Legislature amended the period of
registration, again, in 2007. Effective November 1, 2007, the Sex Offenders Registration Act
required each offender to be assigned to one of
three risk levels. 57 O.S.Supp.2007, §§ 582.1 –
582.5. Section 583(C) was also amended to set
the registration period for each of the three risk
levels. 57 O.S.Supp.2007, § 583(C). An offender
assigned to the risk level of “one” shall be
required to register for a period of fifteen (15)
years from the date of completion of the sentence. Id. An offender assigned to the risk level
of “two” shall be required to register for a
period of twenty-five (25) years from the date
of completion of the sentence. Id. A habitual
offender, aggravated offender or an offender
assigned to the risk level of “three” shall be
required to register for life. Id.
¶7 If either the 2004 or the 2007 amendments
to § 583(C) apply retroactively, they would
require Appellee to register as a sex offender
during the time frame alleged within the Information. However, “[i]t is a fundamental rule of
statutory construction that intervening changes in the law should only be applied prospectively from their effective date, unless the Legislature has specifically declared that they have
The Oklahoma Bar Journal
Vol. 85 — No. 34 — 12/20/2014
retroactive effect.” State v. Salathiel, 2013 OK CR
16, ¶ 8, 313 P.3d 263, 266.
¶8 “[T]he presumption against retroactive
legislation is deeply rooted in our jurisprudence, and embodies a legal doctrine centuries
older than our Republic.” Landgraf v. USI Film
Products, 511 U.S. 244, 265, 114 S.Ct. 1483, 1497,
128 L.Ed.2d 229 (1994). “Retroactive legislation
presents problems of unfairness that are more
serious than those posed by prospective legislation, because it can deprive citizens of legitimate expectations and upset settled transactions.” General Motors Corp. v. Romein, 503 U.S.
181, 191, 112 S.Ct. 1105, 1112, 117 L.Ed.2d 328
(1992). Thus, the general common law rule of
statutory construction is that statutes and
amendments are to be construed to operate
only prospectively unless the legislature clearly expresses an intent to the contrary. State v.
Watkins, 1992 OK CR 50, ¶ 5, 837 P.2d 477, 478
(citing Welch v. Armer, 1989 OK 117, ¶ 27, 776
P.2d 847, 850).
¶9 The Legislature expressly declared its
intent in enacting the Sex Offenders Registration Act. 57 O.S.Supp.1997, § 581(B). The Legislature found that sex offenders pose a high risk
of re-offending and implemented the system of
registration to protect public safety. Id. Upon
its initial implementation, the Legislature provided for prospective application of the Act.
The registration requirements only applied to
those offenders that were convicted or received
a suspended sentence after the effective date of
the Act. 57 O.S.Supp.1989, § 582.
¶10 We review the amendments to § 583(C)
under the presumption against retroactive
application and Legislature’s original expression of prospective effect within the Act. Turning to 57 O.S.Supp.2004, § 583(C), we find that
the Legislature did not expressly declare
whether the amended registration period
applied prospectively or retroactively.
¶11 As the Legislature did not expressly
declare that the 2004 amendment was to have
retroactive effect, we construe the amendment
as having prospective operation unless the
intent for retrospective effect is necessarily
implied from the language used. Good v. Keel,
1911 OK 264, ¶ 4, 116 P. 777, 777. However, a
statute ought not to be construed as having
retrospective operation unless the intention of
the Legislature cannot be otherwise satisfied.
Adair v. McFarlin, 1911 OK 129, ¶ 5, 115 P. 787,
788. “It is a rule of construction that statutes
Vol. 85 — No. 34 — 12/20/2014
will not be given a retroactive effect if any
other reasonable construction is possible.”
Casey v. Bingham, 1913 OK 321, ¶ 4, 132 P. 663,
665. “In every case of doubt the doubt must be
resolved against the retrospective effect.” Good,
1911 OK 264, ¶ 4, 116 P. at 777.
¶12 We find that retroactive effect is not necessarily implied from the language used within
the 2004 amendment to § 583. Certainly, there
is a doubt concerning the Legislature’s intent.
Prospective application of the enhanced registration requirements is a reasonable construction of the amendment. As there is not a clear
expression of an intent to the contrary from the
Legislature, we find that the amendment to the
registration period within 57 O.S.Supp.2004, §
583(C), only applies prospectively.
¶13 Turning to 57 O.S.Supp.2007, § 583(C),
we find that the Legislature did not expressly
declare whether the three-tiered registration
period enacted within 57 O.S.Supp.2007, §
583(C), applied prospectively or retroactively.
However, we are guided by the other statutory
provisions that the Legislature enacted to work
in conjunction with the three-tiered registration period. See State v. Doak, 2007 OK CR 3, ¶
17, 154 P.3d 84, 87 (finding that where possible,
statutory amendments should be construed
together). The three-tiered registration period
within 57 O.S.Supp.2007, § 583(C), works in conjunction with the provisions of 57 O.S.Supp.2007,
§§ 582.1-582.5. Both § 582.1 and § 582.2 expressly
provide that the assignment of a risk level to a
sex offender applies to “a person, who will be
subject to the provisions of the Sex Offenders
Registration Act.” (emphasis added). Therefore,
we construe 57 O.S.Supp. 2007, § 583(C) as only
applying prospectively. See Starkey v. Oklahoma
Dept. of Corrections, 2013 OK 43, ¶¶ 28-32, 305
P.3d 1004, 1015-16 (finding 2007 amendments to
Sex Offenders Registration Act were intended to
apply prospectively).
¶14 Citing to the many amendments to the
Act and the ever present language of 57
O.S.Supp.1989, § 582 to the effect that: “The
provisions of the Sex Offenders Registration
Act shall apply to any person who, after
November 1, 1989, has been convicted,” the
State argues that the Legislature explicitly set
forth that it intended for the 2004 and 2007
amendments to apply retroactively. However,
we cannot consider this language as expressing
an intent for the amended registration periods
to be applied retroactively. The cited language
has been in the Act since its initial passage and
The Oklahoma Bar Journal
2701
was the Legislature’s expression that the Act
only have prospective effect. Reimers v. State, ex
rel. Dept. of Corrections, 2011 OK CIV APP 83, ¶
32, 257 P.3d 416, 421. Similar language has also
always been present within § 583. 57 O.S.Supp.
1989, § 583. If the language had been added at
the same time that the amended registration
period was enacted, then that might be taken
as an indication of intent for retroactive application. Because the language has always been
present in § 583 it cannot be a clear indication
of intent as to the 2004 and 2007 amendments.
¶15 We note that the Oklahoma Supreme
Court in Starkey v. Oklahoma Dept. of Corrections,
2013 OK 43, 305 P.3d 1004, held that 57
O.S.Supp.2004, § 583(C) was intended to apply
retroactively. Id., 2013 OK 43, ¶ 34, 305 P.3d at
1017. Because there is doubt concerning the
Legislature’s intent and another reasonable
construction of the statue is possible, we cannot agree with this determination. Nonetheless, since issuing Starkey, the Oklahoma
Supreme Court has held that the correct Sex
Offenders Registration Act registration requirements to apply are those in effect when the sex
offender was either convicted in Oklahoma or
when a sex offender convicted in another jurisdiction enters Oklahoma and becomes subject
to those requirements. Luster v. State, ex rel.
Dept. of Corrections, 2013 OK 97, ¶ 16, 315 P.3d
386, 391; Cerniglia v. Oklahoma Dept. of Corrections, 2013 OK 81, ¶ 6, ––– P.3d ––––, 2013 WL
5470632. We agree with this general rule.
¶16 As the registration period in effect at the
time of Appellee’s conviction had expired prior
to the date charged in the Information, the District Court properly sustained Appellee’s
motion. Proposition One is denied.
¶17 In Proposition Two, the State contends
that the Sex Offender Registration Act does not
violate the prohibitions against ex post facto
laws. Our determination in Proposition One that
the amendments to the registration period only
apply prospectively renders this issue moot.
Castillo v. State, 1998 OK CR 9, ¶¶ 7-8, 954 P.2d
145, 147 (“Petitioner cannot complain that the
Act violates the constitutional prohibitions
against ex post facto laws when the sentencing
matrixes of the Act are not retroactive in application.”). Proposition Two is denied as moot.
DECISION
¶18 The order of the District Court of Tulsa
County quashing the Information is AFFIRMED. The matter is REMANDED for fur2702
ther proceedings consistent with this Opinion.
Pursuant to Rule 3.15, Rules of the Oklahoma
Court of Criminal Appeals, Title 22, Ch. 18, App.
(2014), the MANDATE is ORDERED issued
upon the delivery and filing of this decision.
AN APPEAL FROM THE DISTRICT COURT
OF TULSA COUNTY
THE HONORABLE KURT G. GLASSCO,
DISTRICT JUDGE
APPEARANCES AT TRIAL
Jenny M. Proehl-Day, Assistant District Attorney, 500 S. Denver, Ste 900, Tulsa, OK 74103,
Counsel for the State
Patrick L. Adams, 1331 S. Denver, Tulsa, OK
74119, Counsel for Defendant
APPEARANCES ON APPEAL
Jenny M. Proehl-Day, Assistant District Attorney, 500 S. Denver, Ste 900, Tulsa, OK 74103,
Counsel for Appellant
Patrick L. Adams, 1331 S. Denver, Tulsa, OK
74119, Counsel for Appellee
OPINION BY: LUMPKIN, J.
LEWIS, P.J.: CONCUR IN PART/DISSENT IN
PART
SMITH, V.P.J.: CONCUR
A. JOHNSON, J.: CONCUR
LEWIS, P.J., CONCURRING IN PART AND
DISSENTING IN PART.
¶1 I concur in the Court’s conclusion that the
order appealed is not one suppressing evidence and therefore an appeal by the State cannot proceed under section 1053 (5) of Title 22.
However, statutes and prior case law providing for an order quashing or setting aside an
information, or granting a demurrer, are limited to certain defects appearing “on the face” of
the information or indictment or in the grand
jury process. 22 O.S.2011, § 493, 504; State v.
Hammond, 1989 OK CR 25, ¶ 5, 775 P.2d 826,
828, overruled on other grounds, State v. Young,
1994 OK CR 25, 874 P.2d 57.1
¶2 The order here essentially granted a
motion to quash for insufficient evidence pursuant to section 504.1 of Title 22, because the
defendant, in the view of the trial court, was
able to “establish beyond the face of the . . . information that there is insufficient evidence” of
one of the “necessary elements of the offense,”
i.e., that the defendant’s failure to register was
unlawful. Id. (emphasis added). I therefore
concur that the State can maintain this appeal
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Vol. 85 — No. 34 — 12/20/2014
from an order quashing the information for
insufficient evidence under section 1053 (4).
¶3 I respectfully dissent from the opinion
affirming the trial court’s dismissal of this
criminal charge. Today the Court compounds
the interpretive error committed in State v.
Salathiel, 2013 OK CR 16, 313 P.3d 263, where it
affirmed a trial court’s dismissal of a felony
charge of DUI, second offense. The defendant
in Salathiel had incurred a prior deferred judgment for DUI before the effective date of a 2011
amendment making a second DUI after a prior
DUI deferred judgment a felony.
¶4 The Court in Salathiel was unable to strike
down the amended DUI statute as an ex post
facto law. The entire weight of authority was
against it. Still, the Court upheld the dismissal,
applying a common law “presumption” that
the new law making a deferred judgment a
predicate offense for felony DUI applied only
prospectively. The Court thus limited its application to defendants who, after the effective
date of the amendment, first incurred a deferred
judgment for DUI and then committed a second
DUI offense. That the Legislature anticipated
or intended this bizarre construction “taxes the
credulity of the credulous.” Maryland v. King,
569 U.S. ___, 133 S.Ct. 1958, 1980, 186 L.Ed.2d 1
(2013) (Scalia, J., dissenting).2
¶5 By today’s use of the same common law
presumption, the Court holds that the defendant’s obligation to register as a sex offender
became fixed for all time on the date he suffered conviction or was sentenced as a sex
offender; and that later, more restrictive enactments, cannot alter his initial obligation to
register. Appealing to the “general common
law rule” that statutory amendments are prospective only, absent clear legislative intent, the
Court omits the important proviso that “remedial or procedural statutes which do not create,
enlarge, diminish, or destroy vested rights are
generally held to operate retrospectively.” State
v. Watkins, 1992 OK CR 50, ¶ 5, 837 P.2d 477,
478 (quoting Welch v. Armer, 1989 OK 117, ¶ 27,
776 P.2d 847, 850).
¶6 The common law presumption against
retroactive legislation typically has guided the
interpretation of civil and criminal procedure
statutes by avoiding constructions that abridge
vested legal rights and obligations. In Landgraf
v. USI Film Products, 511 U.S. 244, 114 S.Ct.
1483, 128 L.Ed.2d 229 (1994), the Supreme
Court held that a plaintiff could not seek, after
Vol. 85 — No. 34 — 12/20/2014
a non-jury trial on her employment discrimination claim, the benefit of new statutory amendments providing for money damages and a
jury trial. General Motors Corp. v. Romein, 503
U.S. 181, 112 S.Ct. 1105, 117 L.Ed.2d 328 (1992)
held that a legislative amendment retroactively
requiring refunds of certain reductions in
workers’ compensation benefits did not unconstitutionally impair the obligation of contracts
or deny General Motors due process of law.
These cases teach that some retroactive statutes
may deprive persons “of legitimate expectations and upset settled transactions.” Romein,
503 U.S. at 191, 112 S.Ct. at 1112 (emphasis
added).
¶7 The other cases cited by the majority reinforce this essential point. In Good v. Keel, 29
Okla. 325, 116 P. 777, the Oklahoma Supreme
Court held a condemnation statute could not
retroactively authorize highway officials to
condemn and take Indian land allotted prior to
the passage of the statute. Adair v. McFarlin, 28
Okla. 633, 115 P. 787, held that a 1908 act did
not retroactively divest the district court of
jurisdiction in certain cases then pending under
prior law. Casey v. Bingham, 37 Okla. 484, 132 P.
663, held that a 1908 statute purporting to void
certain conveyances of land before the removal
of restrictions on allotments did not affect
deeds executed and delivered for valid consideration prior to its passage. Welch v. Armer,
supra, held that an amendment affecting the
rights and duties of parties to uninsured motorist contracts involved substantive changes and
could not be retroactively applied to earlier
contracts.
¶8 State v. Watkins, supra, decided under the
anti-retroactivity statute in section 3 of the
Code of Criminal Procedure, held that a new
statute of limitations could not retroactively
extend the time for prosecuting crimes committed before its effective date. Id., 1992 OK CR
50, ¶ 6, 837 P.2d at 478. But the Court had previously held in Allen v. State, 1991 OK CR 35, ¶
2 821 P.2d 371, that the anti-retroactivity statute
is “applicable only to [amendments in] Title
22.” Id., 1991 OK CR 35, ¶ 2, 821 P.2d at 377
(opinion denying rehearing). Watkins and its
application of section 3 are therefore doubtful
authority for the interpretation of statutory
amendments found in Title 57.
¶9 In sum, the anti-retroactivity cases selectively quoted by the Court have no application
here. In those cases, contractual or procedural
rights, title to real property, or lawful jurisdic-
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2703
tion of pending actions, had already vested in
the affected parties before the challenged
amendment to existing law. These laws implicated detrimental reliance and settled matters
that warranted non-retroactivity: Retroactive
application would have abridged vested rights
and violated legitimate expectations.
¶10 Unlike a law retroactively extinguishing
an estate in property or the obligations of contract, the sex offender registration period in
effect at the time of a guilty plea, sentence, or
entry into the state subjecting the offender to
registration, creates a current obligation with no
enforceable due process or ex post facto limitation
on potential future obligations. Watson v. State,
642 S.E.2d 328 (Ga. App. 2007); Peters v. Donald,
639 S.E.2d 345 (Ga. App. 2006)(amendment
requiring sex offenders to register applied to
defendants not required to register at the time of
their guilty pleas, and was not ex post facto).
¶11 Sex offender registration laws are plainly
subject to remedial amendments in the public
interest affecting the obligations of pre-existing
offenders. The clear purpose and intent of the
Legislature in its original enactment of the sex
offender registration law and subsequent
amendments has been to aggressively deal
with the perceived public safety threat posed
by sex offenders. New registration requirements may be onerous; they may even be
excessive and unwise, but they involve no
abridgment of vested legal rights or violation of
legitimate expectations in settled matters.
¶12 Such laws are not subject to an intrusive
judicial presumption of anti-retroactivity that
openly frustrates the policy of the Legislature.
Failure to register as a sex offender has been a
crime in Oklahoma for more than two decades.
57 O.S.2011, § 587 (A). Persons subject to new
registration requirements are bound to take
notice of their current obligations and comply,
or face the current penalty for failing to do so,
unless those requirements abridge specific constitutional guarantees. Smith, 538 U.S. 84, 123 S.
Ct. 1140, 155 L.Ed.2d 163 (2003); Starkey, 2013
OK 43, ¶ 88, 305 P.3d at 1032 (Taylor, J. dissenting) (finding legislature intended SORA amendments to be retroactive to pre-existing offenders,
and amendments are not ex post facto).
¶13 Assuming the 2004 and 2007 SORA
amendments expanded this defendant’s obligation to register, “[a] statute is not made retroactive merely because it draws upon antecedent facts for its operation.” Cox v. Hart, 260 U.S.
2704
427, 435, 43 S.Ct. 154, 157, 67 L.Ed. 332 (1922).
Prosecuting this sex offender for failing to register, in 2012, under a law in effect since at least
2007, involves no retroactive application of
law, in the ex post facto sense, or any other.
Thompson v. State, 603 S.E.2d 233 (Ga. 2004) (finding statute prohibiting sex offender from living
within 1,000 feet of play area created crime
based on offender’s status, but was not retrospective, or ex post facto, to defendant who suffered predicate conviction before effective date).
¶14 Because no constitutional law prohibits
this prosecution for violating the registration
requirements then in effect, I would reverse the
district court and remand the case for trial.
1. State v. Young overruled Hammond and several other cases only
insofar as the latter held that a motion to set aside the information was
not proper in misdemeanor cases. Young, 1994 OK CR 25, ¶ 4, 874 P.2d
at 58.
2. Should the Legislature respond to today’s ruling by stating more
clearly that future SORA amendments apply to pre-existing sex offenders, the Court will eventually be forced to address the ex post facto ruling of the Oklahoma Supreme Court in Starkey v. Oklahoma Department
of Corrections, 2013 OK 43, 305 P.3d 1004, and the United States
Supreme Court’s arguably contrary holding in Smith v. Doe, 538 U.S.
84, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003). I have previously expressed
my agreement with the dissenters in Starkey that these SORA amendments are not ex post facto as applied to offenders convicted, sentenced,
or otherwise made subject to Oklahoma sex offender registration
requirements before the effective date of the amendments.
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www.oklalegal.com
Vol. 85 — No. 34 — 12/20/2014
Disposition of Cases
Other Than by Published Opinion
COURT OF CRIMINAL APPEALS
Tuesday, November 25, 2014
F-2013-1173 — William Jeffery Smith, Appellant, was tried by jury for the crimes of Count I
- Trafficking in Illegal Drugs, Count II - Possession of a Firearm During Commission of a Felony, Count III - Public Intoxication (Misdemeanor) and Count IV - Unlawful Possession of Drug
Paraphernalia in Case No. CF-2011-243 in the
District Court of Washington County. The jury
returned a verdict of guilty and recommended
as punishment 15 years and a $25,000 fine on
Count I, 10 years and a $10,000 fine on Count II,
30 days imprisonment and a $100 fine on Count
III and one year imprisonment and a $1,000 fine
on Count IV. The trial court sentenced accordingly and ordered Count II to run consecutively
to Count I, and Counts III and IV to run concurrently with Count I. From this judgment and
sentence William Jeffery Smith has perfected his
appeal. AFFIRMED. Opinion by: Smith, V.P.J.:
Lewis, P.J., concur; Lumpkin, J., concur; A. Johnson, J., concur.
Wednesday, December 3, 2014
F-2013-1116 — Marin Clay Allison, Appellant,
was tried by jury for the crime of First Degree
Child-Abuse Murder, in Case No. CF-2012-320,
in the District Court of Bryan County. The jury
convicted him of the lesser-related offense of
Second Degree Felony Murder and recommended as punishment nineteen years imprisonment.
The trial court sentenced accordingly. From this
judgment and sentence Marin Clay Allison has
perfected his appeal. AFFIRMED. Opinion by:
Per Curiam; Lewis, P.J., Concurs; Smith, V.P.J.,
Concurs; Lumpkin, J., Concurs in Results; A.
Johnson, J., Concurs.
F-2013-1103 — William Leroy Harding, Appellant, was tried by jury for the crimes of First
Degree Murder (Count 1) and Felon in Possession of a Firearm, After Former Conviction of
Two or More Felonies (Count 2) in Case No.
CF-2012-5233 in the District Court of Oklahoma
County. The jury returned a verdict of guilty and
set punishment at life imprisonment on Count 1
and three years imprisonment on Count 2. The
trial court sentenced accordingly and ordered
Vol. 85 — No. 34 — 12/20/2014
the sentences to be served concurrently. From
this judgment and sentence William Leroy Harding has perfected his appeal. The Judgment and
Sentence of the District Court is AFFIRMED.
Opinion by: Johnson, J.; Lewis, P.J., concurs;
Smith, V.P.J., concurs; Lumpkin, J., concurs.
F-2013-663 — Dustin Everett Boggs, Appellant, was tried by jury for the crime of First
Degree Murder, in Case No. CF-2012-207, in the
District Court of Ottawa County. The jury
returned a verdict of guilty and recommended
as punishment life imprisonment. The trial court
sentenced accordingly. From this judgment and
sentence Dustin Everett Boggs has perfected his
appeal. AFFIRMED. Opinion by: Per Curiam;
Lewis, P.J., Concurs; Smith, V.P.J., Concurs;
Lumpkin, J., Concurs; A. Johnson, J., Concurs.
Thursday, December 4, 2014
F-2013-538 — Crawford Oliver Martin, Appellant, was tried by jury for the crime of Possession of a Controlled Dangerous Substance
(Cocaine Base), After Former Conviction of Two
or More Felonies in Case No. CF-2012-450 in the
District Court of Payne County. The jury
returned a verdict of guilty and recommended
as punishment 15 years imprisonment. The trial
court sentenced accordingly. From this judgment and sentence Crawford Oliver Martin has
perfected his appeal. AFFIRMED. Opinion by:
Smith, V.P.J.; Lewis, P.J., concur; Lumpkin, J.,
concur; A. Johnson, J., concur.
M-2013-1149 — Following a jury trial before
the Honorable Bill Hiddle, Special Judge, in the
District Court of Tulsa County, Case No.
CM-2012-2546, James Crawford Barnum, Jr.,
Appellant, was found guilty of the misdemeanor offenses of Unlawful Possession of Drug
Paraphernalia and Obstructing an Officer. In
accordance with the jury’s verdicts, Judge Hiddle, on December 5, 2013, imposed a term of six
(6) months confinement in the county jail on
each count, and ordered that those terms would
be served consecutively. Appellant appeals those
convictions. AFFIRMED. Opinion by: Smith,
V.P.J.; Lewis, P.J., concur; Lumpkin, J.; concur in
results; Johnson, J., concur.
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2705
Friday, December 5, 2014
F-2013-1174 — Appellant Darnell Juan Crosby
was tried by jury and convicted of Feloniously
Pointing a Firearm (Count III) and Assault and
Battery with a Dangerous Weapon (Counts IV
and V), in Case No. CF-2013-2055, in the District
Court of Tulsa County. The jury recommended
as punishment three (3) years imprisonment and
a $1,000.00 fine in Count III; and two (2) years
imprisonment and a $1,000.00 fine in each of
Counts IV and V. The trial court sentenced
accordingly in Counts III and IV, ordering the
sentences to run concurrently. Appellant was
also ordered to serve nine months of postimprisonment supervision. The trial court dismissed the conviction in Count V finding it
merged with Count IV. It is from this judgment
and sentence that Appellant appeals. AFFIRMED.
Opinion by: Lumpkin, J.; Lewis, P.J.: concur;
Smith, V.P.J.: concur; Johnson, J.: concur.
F-2013-1017 — Appellant John Sherman Wood
pled guilty in Case No. CF-2011-148B on August
24, 2011. On April 5, 2012, Appellant pled guilty
in Case No. CF-2011-412A. The Honorable Timothy L. Olsen, Associate District Judge, delayed
Appellant’s sentencing in both cases pending
completion of Drug Court. On August 20, 2013,
the State filed an application to terminate Appellant’s participation in Drug Court. Following a
hearing, Judge Olsen terminated Appellant’s
participation in Drug Court and sentenced
Appellant to serve twenty-five years imprisonment per his Drug Court performance contract.
Appellant appeals. The termination of Appellant’s participation in Drug Court is AFFIRMED.
Opinion by: Lumpkin, J.; Lewis, P.J.: concur;
Smith, V.P.J.: concur; Johnson, J.: concur.
F-2013-933 — Appellant, Jeffrey Ramirez, was
tried by jury and convicted of Murder in the
First Degree, in District Court of Oklahoma
County Case Number CF-2012-5232. The jury
recommended as punishment imprisonment for
life. The trial court sentenced accordingly. It is
from this judgment and sentence that Appellant
appeals. AFFIRMED. Opinion by: Lumpkin, J.;
Lewis, P.J.: concur; Smith, V.P.J.: concur; Johnson,
J.: concur.
C-2014-548 — Petitioner Ryon Langrehr was
charged with First Degree Rape in the District
Court of Seminole County, Case No. CF-2012-80.
On December 11, 2013, Petitioner entered a plea
of guilty to a reduced charge of Second Degree
Rape before the Honorable George Butner, District Judge. The plea was accepted and on Febru2706
ary 21, 2014, Petitioner was sentenced to fifteen
(15) years imprisonment with the last five (5)
years suspended. On March 4, 2014 and April 11,
2014, Petitioner filed a Motion to Withdraw Guilty
Plea and Supplemental Motion to Withdraw Guilty
Plea, respectively. A hearing on the motion to
withdraw was held on April 9, 2014. On June 11,
2014, the trial court denied the motion. It is that
denial which is the subject of this appeal. The
order of the district court denying Petitioner’s
motion to withdraw guilty plea is AFFIRMED.
Opinion by: Lumpkin, J.; Lewis, J., P.J.: concur;
Smith, V.P.J.: concur; Johnson, P.J.: concur.
COURT OF CIVIL APPEALS
(Division No. 1)
Wednesday, November 26
112,638 — James Belcher, Raylene Belcher,
Curtis Belcher, David Belcher, and Bobby
Belcher, Plaintiffs/Appellants, vs. Willie Rae
Belcher, Personal Representative of the Estate
of Delmar Ray Belcher, Defendant/Appellee,
and Willie Rae Belcher, individually, Additional Party/Appellee. Appeal from the District
Court of Pushmataha County, Oklahoma. Honorable Jana Wallace, Judge. Plaintiffs/Appellants James Belcher, Raylene Belcher, Curtis
Belcher, David Belcher, and Bobby Belcher (collectively, Children) appeal from summary
judgment granted to Defendant/Appellee Willie Rae Belcher, individually and as Personal
Representative of the Estate of Delmar Ray
Belcher (Widow). Children sought to reform a
deed by which Widow and Delmar Ray Belcher
(Decedent) conveyed property to Children.
Children asserted the conveyance of less than
all of Decedent’s and Widow’s real property
was a scrivener’s error which must be reformed
and they sought an order quieting title to all
the property. The trial court granted summary
judgment on the deed reformation claim and
dismissed the quiet title claim. A voluntary
conveyance of real property without consideration may not be reformed against the grantor
without his consent. Accordingly, Widow was
entitled to judgment as a matter of law and we
affirm. AFFIRMED. Opinion by Buettner, J.;
Joplin, P.J., and Hetherington, V.C.J., concur.
112,663 — Multiple Injury Trust Fund, Petitioner, vs. Rolland L. Forbes and The Workers’
Compensation Court, Respondents. Proceeding to Review an Order of The Workers’ Compensation Court of Existing Claims. Honorable
Bob Lake Grove, Trial Judge. Petitioner Multiple Injury Trust Fund (MITF) seeks review of
an order of the Workers’ Compensation Court
The Oklahoma Bar Journal
Vol. 85 — No. 34 — 12/20/2014
of Existing Claims which found Respondent
Rolland L. Forbes was PTD due to a combination of injuries. The sole issue in this review
proceeding is whether partial vision loss constitutes a previous disability which may be
combined with subsequent injuries and subject
MITF to liability for materially greater disability resulting from the combination. On de novo
review of this question of law, we find the trial
court erred as a matter of law in finding Forbes
was a previously physically impaired person
entitled to benefits from MITF and we vacate
the order on review. VACATED. Opinion by
Buettner, Acting P.J.; Hetherington, V.C.J., and
Mitchell, J. (sitting by designation), concur.
(Division No. 2)
Monday, November 24
110,870 — In the Matter of the Guardianship
of: Mamie Doll McConnell, an incapacitated
person, and by Order of Consolidation, In the
Matter of the Estate of: Mamie Doll McConnell,
Deceased. Virginia Hammond, Appellant, v.
Daisy James and Ellis Messer, Appellees.
Appeal from the District Court of Creek County, Hon. David N. Martin, Trial Judge. The trial
respondent, Virginia Hammond (Hammond)
appeals the Final Order Regarding All Guardianship Matters and Final Decree Allowing
Petition for Determining Heirs, Final Account
and Decreeing Distribution of Estate and
Imposing Sanctions (Final Order). The Final
Order was entered in the Matter of the Guardianship of Mamie Doll McConnell, an incapacitated person and the consolidated Matter of
the Estate of Mamie Doll McConnell, Deceased.
Ellis Messer, Jr (Messer) and Daisy James
(James), are the Protestants in the trial court
and appellees here. Daisy James died after the
appeal was filed. It is therefore Ordered that
Virginia Kaye Scouten, Personal Representative, is substituted for Daisy James. Hammond’s assertion that the trial court lacked
jurisdiction was decided in Hammond I. This
decision became the law of the case and the
facts relating to that decision have not changed
in subsequent proceedings. Hammond has not
demonstrated that Hammond I is erroneous so
as to result in gross injustice. Hammond’s
objections to entry of the Final Order are rejected with the exception of allocation of the
mediator’s fees pursuant to Hammond I. Although the mediator’s fee allocation should
have been resolved by agreement, it was not
resolved. The cause is remanded to allocate the
mediator’s fee as proposed by James and
Vol. 85 — No. 34 — 12/20/2014
Messer. The trial court did not err by refusing
to appoint a special administrator to pursue a
debt which is time-barred or forgiven. Hammond did not seek an alternative ruling about
whether the forgiveness of the debt constituted
an advancement on Messer’s inheritance and
this issue is now moot. Hammond has not
shown any error by the trial court regarding
the procedure for approval of the Final Account.
Hammond did not present authority to support her claim of error about revisions to the
Final Account, so that claim is not considered.
THE FINAL ORDER REGARDING ALL
GUARDIANSHIP MATTERS AND FINAL
DECREE ALLOWING PETITION FOR DETERMINING HEIRS, FINAL ACCOUNT AND
DECREEING DISTRIBUTION OF ESTATE IS
AFFIRMED, IN PART, AND REMANDED, IN
PART, WITH INSTRUCTIONS. THE FINAL
ORDER IMPOSING SANCTIONS IS VACATED AND THE MATTER OF SANCTIONS IS
REMANDED FOR FURTHER PROCEEDINGS. VACATED IN PART, AFFIRMED IN
PART AND REMANDED IN PART. Opinion
from Court of Civil Appeals, Division II, by
Rapp, J.; Fischer, P.J., concurs, and Thornbrugh,
J., concurs in part and dissents in part.
Monday, December 8, 2014
111,081 — Christopher J. Holdman, Respondent/Appellant, vs. Jamie B. Seigel, Petitioner/
Appellee. Appeal from Order of the District
Court of Tulsa County, Hon. Charles Hogshead,
Trial Judge. Respondent/Appellant Christopher
Holdman appeals from the district court’s Final
Order of Protection granted to Petitioner/Appellee Jamie Seigel. Because Holdman failed to
present the judgment roll associated with Seigel’s prior petition for protective order, the
record herein is devoid of any evidence to support Holdman’s contention that Seigel’s petition
for protective order was barred by the doctrine
of res judicata or claim preclusion. Despite the
absence of a law enforcement report in the
record, nothing in 22 O.S.2011 § 60.2(A)(1)
requires the person seeking relief to file a copy of
the law enforcement report in the protective
order proceedings. In accordance with Hamid v.
Sew Original, 1982 OK 46, 645 P.2d 496, this
Court presumes Seigel met the statutory requirements for a protective order set forth in 22
O.S.2011 § 60.2(A)(1). Accordingly, we find district court’s granting of a final protective order
to Seigel was neither clearly against the evidence
nor contrary to law, and the district court’s final
order of protection is hereby affirmed. AF-
The Oklahoma Bar Journal
2707
FIRMED. Opinion from Court of Civil Appeals,
Division II by Fischer, P.J.; Rapp, J., and Thornbrugh, J., concur.
Tuesday, December 9, 2014
111,831 — Robert Keel, Appellant, vs. Harold
David Nunn, Appellee. Appeal from Order of
the District Court of McClain County, Hon.
Charles Gray, Trial Judge. Defendant/Appellant
Robert T. Keel appeals the decision of the district
court granting summary judgment in favor of
Plaintiff/Appellee Harold David Nunn on his
action to quiet title to certain real property. We
find the district court committed no error in
granting summary judgment in favor of Nunn in
his action to quiet title to the Property against
Keel. Keel’s primary defense to Nunn’s action
constituted an impermissible collateral attack
upon the prior judgment rendered in favor of
Nunn and against the Miners in Pontotoc County case number C-2001-611. The Pontotoc County District Court’s findings of jurisdictional facts
were conclusive as to the jurisdictional issues
raised by Keel, thus the district court’s reliance
upon the Pontotoc Co. Journal Entry was proper. In accordance with 12 O.S.Supp.2002 §
735(A)(2) and 12 O.S.2001 § 759(C)(2), Nunn
filed a notice of renewal of judgment in Pontotoc County case number C-2001-611 in both
2006 and 2011, which extended his time in
which to execute upon such judgment.
Because the Miners’ right, title and interest in
the Property was conveyed to Nunn by the
Pontotoc Co. Journal Entry in March 2002,
Keel obtained no right, title or interest in the
Property as the result of his March 2010 judgment against the Miners in Garvin County
District Court. Accordingly, the decision of the
district court is hereby affirmed. AFFIRMED.
Opinion from Court of Civil Appeals, Division II by Fischer, P.J.; Rapp, J., and Thornbrugh, J., concur.
(Division No. 3)
Friday, November 21
111,694 — Ronald Woodruff, Plaintiff/Appellee, vs. Wayne Brown, Defendant/ Appellant. Appeal from the District Court of Latimer
County, Oklahoma. Honorable Bill Welch,
Judge. Appellant (Brown) appeals from the
trial court’s judgment enjoining him from
interfering with a roadway, ostensibly created
by a written easement filed of record, that runs
across his property to the property owned by
Appellee (Woodruff). Brown was given notice
that Woodruff sought to enforce a 30 foot wide
2708
easement created by an instrument filed in
1980. Woodruff made no claim for an easement
by necessity or prescription. The record is
devoid of evidence showing the County Commissioners ever took any action to open the
disputed roadway as a road for public use. The
court’s conclusion that the 1980 easement created such a public roadway was erroneous. We
agree with Brown that the court’s decision
deprived him of due process of law. The court
specifically excluded evidence concerning any
claim for relief not based on the written easement and denied Woodruff’s motion to amend
his petition to include claims for easement by
necessity and prescription. Based on those rulings, Brown proceeded to defend against the
action as pled, namely one seeking an injunction against interfering with the 30 foot strip as
described in the 1980 easement. The court’s
ultimate judgment appears to have granted
some sort of prescriptive easement, easement
by necessity and/or easement “by acquiescence.” Such procedure clearly denied Brown
due process of law because it prevented him
from presenting a defense to any claimed easement not set forth in Woodruff’s petition. The
judgment of the trial court is REVERSED AND
REMANDED for further proceedings. Opinion
by Bell, P.J.; Mitchell, J., and Goree, J., concur.
111,802 — Patton Construction Company,
Plaintiff/Appellee, vs. Town of Gore, Defendant/Appellant. Appeal from the District
Court of Sequoyah County, Oklahoma. Honorable Dennis M. Sprouse, Judge. This dispute
arises out of a paving contract entered into by
Appellant (Town) and Appellee (Patton). Town
contends the trial court erred by submitting the
case to the jury on the theory of quasi-contract
because the Public Competitive Bidding Act,
61 O.S. 2001 §101 et seq. (Act), precludes equitable forms of recovery. We find no textually
demonstrable legislative intent to make breach
of contract the exclusive remedy for disputes
arising out of public construction contracts.
And, although the Act requires a written, executed contract, proof of insurance, and bonds
before work begins, Town identifies no legal
authority, nor have we discovered any, that
requires a contractor to be entirely responsible
for ensuring these requirements are met. The
key facts in the instant case are that Town
accepted Patton’s bid of $36.60 per ton and
Town encouraged Patton to go forward with
the job despite the absence of required documentation. Although the Act’s purpose is to
benefit and protect the public, we cannot agree
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that the Legislature also intended to allow
Town to hide behind the statutes and receive a
benefit without upholding its end of the bargain. AFFIRMED. Opinion by Mitchell, J.; Bell,
P.J., and Goree, J., concur.
111,810 — Deloris Gray Wood, Plaintiff/
Appellant, vs. Bobby Dodson and Jackleen
Dodson, husband and wife, Defendants/
Appellees, and John Brydges, III and Linda E.
Brydges, Husband and Wife, Defendants.
Appeal from the District Court of Okmulgee
County, Oklahoma. Honorable Kenneth E.
Adair, Trial Judge. Plaintiff/Appellant, Deloris
Wood, owns landlocked property on top of a
hill in a rural area north of Okmulgee. She petitioned the court for judicial recognition of an
implied easement to access her property by
driving across land owned by Defendants/
Appellees, Bobby and Jackleen Dodson. She
also sought damages claiming the Dodsons
prevented her from entering her land. The
equitable claim was bifurcated from the damages claim. During the first trial, after the presentation of Wood’s evidence, the court sustained the Dodsons’ demurrer and established
a new easement in a location different from the
claimed easement. We hold: (1) Wood was
entitled to a declaration of an implied easement on the claimed roadway, (2) relocating
the easement was not against the clear weight
of the evidence, (3) the Dodsons must bear the
cost of constructing a comparable roadway on
the new easement, and (4) the trial court correctly denied Wood’s claim for nominal damages based on breach of contract. VACATED
IN PART, AFFIRMED IN PART, MODIFIED IN
PART. Opinion by Goree, J.; Bell, P.J., and
Mitchell, J., concur.
112,353 — Mark Abel and Abel Properties,
L.L.C., d/b/a Abel Homes, an Oklahoma Limited Liability Company, Plaintiffs/Appellants,
vs. Mid-Continent Casualty Company, Oklahoma Insurance Company, Defendant/Appellee, and Garrett & Company Insurance Agency,
L.L.C., an Oklahoma Limited Liability Company, Defendant. Appeal from the District
Court of Oklahoma County, Oklahoma. Honorable Roger Stuart, Judge. Mark Abel and
Abel Properties, L.L.C., Plaintiffs/Appellants
(“Builder”), seeks review of an order denying
Builder’s Motion for Partial Summary Judgment and granting Defendant/Appellee (“Insurer”) Mid-Continent Casualty Company’s
Motion for Summary Judgment in this breach
of contract/bad faith action. The trial court’s
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determination stems from its conclusion that
Insurer owed no duty to defend Builder in an
underlying construction defect lawsuit pursuant to the terms and conditions of the parties’
commercial general liability insurance policy.
Our analysis of the policy terms and specific
applicable exclusions unambiguously reveals
the insurance policy does not apply to the construction defect claims insomuch as the property damaged was the real property itself and
the damage arose from work performed incorrectly either by Builder and/or by subcontractors working on Builder’s behalf. Further, insomuch as the subject policy expressly provides
the Insurer’s duty to defend only exists where
coverage exists and the policy terms and exclusions unambiguously reveal no coverage applied
to the damages claimed herein for construction
defects in Insured’s work product, we find the
Insurer owed no duty to defend Builder as a
matter of law. The order on appeal is AFFIRMED.
Opinion by Mitchell, J.; Bell, P.J., and Goree, J.,
concur.
112,873 — (Comp. w/112,874 and 112,875) In
the Matter of the Construction of the Shirley L.
Gamble Living Trust, as Established on December 6, 1996, Carroll E. Gregg, Appellant, Toni
Lee Gamble-Hunter and Theodore Belling,
Personal Representatives of the Estate of Linda
Sue Gamble and Successor Death Co-Trustees
of the Linda Sue Gamble Living Trust, as Beneficiary of the Shirley L. Gamble Living Trust,
Petitioners/Appellees, vs. The Trust Company
of Oklahoma, as Successor Death Trustee of the
Shirley L. Gamble Living Trust and Paul Stanley Gamble, Beneficiary of the Shirley L. Gamble Living Trust, Respondents. Appeal from
the District Court of Oklahoma County, Oklahoma. Honorable Roger H. Stuart, Trial Judge.
Appellant, Carroll Gregg, seeks review of the
trial court’s judgment dismissing Gregg’s petition in intervention with prejudice because it
was filed without leave and was barred by the
statute of limitations. We AFFIRM because
Gregg’s allegations establish that the limitations period has expired. Opinion by Goree, J.;
Bell, P.J., and Mitchell, J., concur.
112,874 — (Comp. w/112,873 and 112,875) In
the Matter of the Estate of Linda Sue Gamble,
Deceased, Carroll E. Gregg, Appellant, vs. Tori
Lee Gamble-Hunter and Theodore Belling,
Appellees. Appeal from the District Court of
Oklahoma County, Oklahoma. Honorable
Allen J. Welch, Trial Judge. Appellant, Carroll
Gregg, seeks review of the trial court’s order
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granting summary judgment in favor of Appellee, Toni Gamble-Hunter on Gregg’s claim
against the estate of Linda Gamble. We AFFIRM
because Gregg’s allegations establish that the
limitations period has expired. Opinion by
Goree, J.; Bell, P.J., and Mitchell, J., concur.
112,875 — (Comp. w/112,873 and 112,874) In
the Matter of the Estate of Shirley L. Gamble,
Deceased, Carroll E. Gregg, Appellant, vs.
Estate of Shirley L. Gamble, Deceased, Appellee. Appeal from the District Court of Oklahoma County, Oklahoma. Honorable Allen J.
Welch, Trial Judge. Appellant, Carroll Gregg,
seeks review of the trial court’s order granting
summary judgment in favor of Appellee, Toni
Gamble-Hunter on Gregg’s claim against the
estate of Shirley Gamble. We AFFIRM because
Gregg’s allegations establish that the limitations period has expired. Opinion by Goree, J.;
Bell, P.J., and Mitchell, J., concur.
Friday, December 5, 2014
111,276 — Highlander Management, LLC, an
Oklahoma limited liability company, Plaintiff/
Appellee, vs. Jerry Bromlow and Sharon Bromlow, Defendants/Appellants, and David T. Radcliff, Treasurer of Canadian County, Oklahoma;
Canadian County Oklahoma Board of Commissioners, Defendants. Appeal from the District
Court of Canadian County, Oklahoma. Honorable Gary E. Miller, Judge. Appellants (Bromlows) appeal from the trial court’s judgment
invalidating and cancelling a tax resale deed
previously purchased by them and quieting title
to the subject property in the original owner,
Appellee (Highlander). Bromlows were twice
instructed by the trial court to brief solely legal
issues and were informed that an evidentiary
hearing would be conducted later if necessary.
Their briefs thoroughly document their understanding of the limited nature of the briefs and
their concerns about Highlander’s briefs straying into factual matters. Notwithstanding its
previous rulings, the trial court proceeded to
resolve a factual issue and grant judgment without affording Bromlows an opportunity to, inter
alia, contest whether the Treasurer’s certified
mailings were signed for by someone not authorized to accept mail on behalf of Highlander.
Such procedure clearly denied Bromlows due
process of law. The judgment of the trial court is
reversed and this matter is remanded for further
proceedings. REVERSED AND REMANDED.
Opinion by Bell, P.J.; Mitchell, J., and Goree, J.,
concur.
2710
111,898 — Douglas E. Townsend, Plaintiff/
Appellant, vs. Cudd Pressure Control, Inc., a
Delaware Corporation, Defendant/Appellee.
Appeal from the District Court of Canadian
County, Oklahoma. Honorable Barbara Hatfield,
Trial Judge. Plaintiff/Appellant, Douglas E.
Townsend, seeks review of the trial court’s order
denying his motion for new trial after a directed
verdict against him in his personal injury action
against Defendant/Appellee, Cudd Pressure
Control, Inc. (Cudd). We hold the trial court
properly directed a verdict for Cudd and did not
abuse its discretion in denying new trial because
the record does not establish prima facie that
Cudd failed to exercise ordinary care. Therefore,
we affirm the trial court’s order denying new
trial. Opinion by Goree, J.; Bell, P.J., and Mitchell,
J., concur.
111,998 — In Re the Marriage of Kimberly Kay
Quigley and William Dale Quigley: Kimberly
Kay Quigley, Petitioner/Appellant, vs. William
Dale Quigley, Respondent/Appellee. Appeal
from the District Court of Logan County, Oklahoma. Honorable Rob Hudson, Trial Judge. Petitioner/Appellant, Kimberly Quigley (Wife) filed
a petition to vacate a judgment and Respondent/Appellee, William Quigley (Husband)
filed a motion to dismiss. We affirm the dismissal because it was not an abuse of discretion.
Wife’s claims of newly discovered evidence [12
O.S. 2011 §651(7)] and fraud in obtaining the
judgment [12 O.S. 2011 §1031(4)] were filed too
late. Wife’s claims of an improper discovery
order and an improvident award of attorney fees
do not address irregularity in obtaining a judgment [12 O.S. 2011 §1031(3)]. Husband’s motion
for an award of appeal-related costs and attorney fees is denied without prejudice to the filing
of a separate motion in compliance with Okla.
Sup. Ct. R. 1.14. AFFIRMED. Opinion by Goree,
J.; Bell, P.J., and Mitchell, J., concur.
112,035 — In Re the Marriage of Alisa Dianne
Welch and Tony Wayne Welch: Alisa Dianne
Welch, Petitioner/Appellee, vs. Tony Wayne
Welch, Respondent/Appellant. Appeal from the
District Court of Oklahoma County, Oklahoma.
Honorable Barry L. Hafar, Judge. Appellant
(Husband) appeals from the trial court’s Decree
of Dissolution of Marriage which divided the
parties’ marital property and debt. Husband
claims his due process rights were violated
when the court refused to compel Appellee
(Wife) to answer his discovery requests. Husband also claims he was entitled to marital property division of a life insurance policy and
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Vol. 85 — No. 34 — 12/20/2014
Devon Energy stock. Because Husband failed to
produce a record sufficient to demonstrate error,
the trial court’s judgment is AFFIRMED. Opinion by Mitchell, J.; Bell, P.J., and Goree, J., concur.
(Division No. 4)
Wednesday, October 9
111,988 — Discover Bank, Plaintiff/Appellee,
vs. Jason Gunnars, Defendant/ Appellant. Appeal from the District Court of Tulsa County,
Hon. Martha Rupp Carter, Trial Judge. Jason
Gunnars (Debtor) appeals the trial court’s order
denying his petition to vacate an earlier default
judgment entered against him in favor of Discover Bank (Discover). It is clear from the face of
the judgment roll that Debtor was never served
with the petition and thus had no notice of the
lawsuit against him. The trial court did not
acquire jurisdiction to enter a default judgment
against Debtor, and the default judgment was
therefore void and subject to attack at any time.
Debtor’s petition to vacate the default judgment
was improperly denied. The trial court’s order is
vacated and the matter remanded to the trial
court for further proceedings. VACATED AND
REMANDED FOR FURTHER PROCEEDINGS.
Opinion from the Court of Civil Appeals, Division IV, by Goodman, J.; Barnes, C.J., and Wiseman, P.J., concur.
111,846 — State of Oklahoma, ex rel. Department of Human Services Child Support Division, in the Interest of the Minor Children of:
Ellen B. Cathey, Plaintiff/Appellant, v. Charles
Allen Rogers, Defendant/Appellee. Appeal
from an Order of the District Court of Oklahoma County, Hon. Lisa K. Hammond, Trial
Judge. Plaintiff/Appellant (Mother) appeals
the trial court’s Order finding that the amount
of child support arrearages and interest owed by
Father to Mother be decreased by the amount of
child support arrearages and interest owed by
Mother to Father. In support of her arguments,
Mother does not direct this Court to any document in the record, nor does she demonstrate the
issues she raises were presented to the trial
court. Instead, she sets forth bare legal argument
disconnected from record facts. At most, Mother
cites to a transcript that has not been provided to
this Court on appeal. These various failings,
among other things, are set forth in Father’s
Answer Brief. Mother did not file a Reply Brief.
Because we must presume that no error was
committed by the trial court unless affirmatively
demonstrated by the appellant – which Mother,
as the appellant in this case, has categorically
failed to do – we affirm the trial court’s Order.
Vol. 85 — No. 34 — 12/20/2014
AFFIRMED. Opinion from Court of Civil
Appeals, Division IV, by Barnes, C.J.; Wiseman,
P.J., and Goodman, J., concur.
Thursday, October 30, 2014
112,479 — Naomi Robertson, Petitioner, v.
Nowata Nursing Center, Inc., Compsource Oklahoma, Insurance Carrier, and the Workers’ Compensation Court, Respondents. Proceeding to
review an Order of a three-judge panel of the
Workers’ Compensation Court, Hon. William R.
Foster, Trial Judge. Petitioner (Claimant) suffered a heart attack and filed a compensation
claim asserting the heart attack was caused by
her employment. However, the medical report
presented in support of Claimant’s claim contains several errors and omissions that call the
medical conclusions in the report into question,
and a second medical report contradicts its conclusions – it concludes the major cause of Claimant’s injury is unrelated to her employment.
Finally, Claimant testified she was more stressed
than usual the week leading up to the heart
attack, but that her actual physical exertion at
work during this time was no different than
usual. She testified she worked Monday through
Friday and did not start feeling definite symptoms until the weekend; she testified she suffered the heart attack on a Sunday while doing
chores. In our application of the against-theclear-weight-of-the-evidence standard of review
on appeal, we will not lightly displace the judgment of the trial court, which had the advantage
of observing the witnesses. We must show great
deference to trial court determinations of the
credibility of the witnesses and the weight to be
given their testimony. Based on our review of all
the evidence in this case, we conclude the Order
affirming the trial court’s order denying Claimant’s compensation claim is not clearly against
the weight of the evidence, and we sustain. SUSTAINED. Opinion from Court of Civil Appeals,
Division IV, by Barnes, C.J.; Wiseman, P.J., and
Goodman, J., concur.
Friday, October 31, 2014
112,122 — Jeanette Y. Ball, Petitioner, vs. Multiple Injury Trust Fund, and The Workers’ Compensation Court, Respondents. Proceeding to
review an order of a three-judge panel of The
Workers’ Compensation Court, Hon. Bob Lake
Grove, Trial Judge, reversing a decision of the
trial court that awarded Claimant permanent
total disability benefits from the Multiple Injury
Trust Fund (MITF). We find that the Workers’
Compensation Court en banc erred in holding
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Claimant is not entitled to permanent total disability benefits from the MITF. Accordingly, we
vacate the decision of the three-judge panel
and remand for reinstatement of the trial
court’s decision. VACATED AND REMANDED WITH DIRECTIONS. Opinion from the
Court of Civil Appeals, Division IV, by Wiseman, P.J.; Goodman J., concurs, and Barnes,
C.J., concurs specially.
ing claims. Accordingly, we affirm the order of
the trial court as to Smith’s breach of contract
claim and reverse the judgment as to Smith’s
remaining claims and remand for further proceedings. AFFIRMED IN PART, REVERSED IN
PART, AND REMANDED FOR FURTHER
PROCEEDINGS. Opinion from the Court of
Civil Appeals, Division IV, by Wiseman, P.J.;
Barnes, C.J., and Goodman, J., concur.
Wednesday, November 12, 2014
Wednesday, November 19, 2014
112,241 — Ranger Contracting, Inc., an Oklahoma corporation, Plaintiff/Appellant, vs.
Carelyn Stuckey Talley and Kirk Talley, Defendants/Appellees. Appeal from the District
Court of Woodward County, Hon. Ray Dean
Linder, Trial Judge. Ranger Contracting, Inc.
(Ranger), appeals an order denying its motion
to vacate an earlier order which granted Careylyn Stuckey Talley and Kirk Talley (collectively
“Talleys”) judgment. We conclude from a
review of the record that the trial court did not
abuse its discretion in overruling Ranger’s
motion to vacate as it has failed to show sufficient cause for failing to appear at the hearing,
which it acknowledges it had notice. In addition, the record provides Ranger failed to
attend the previous two (2) hearings, resulting
in the dismissal of its petition. Finally, Ranger
makes additional arguments on appeal in support of reversal which were not raised to the
trial court in its motion to vacate. This Court
will not consider for the first time on appeal
those arguments which were not presented to
the trial court. Accordingly, we find no abuse
of discretion and affirm the order denying
Ranger’s motion to vacate. AFFIRMED. Opinion from the Court of Civil Appeals, Division
IV, by Goodman, J.; Barnes, C.J., and Wiseman,
P.J., concur.
112,320 — Josephine Wapp, Plaintiff/Appellee, vs. Roland Lambert, Defendant/ Appellant. Appeal from an order of the District Court
of Comanche County, Hon. Keith B. Aycock,
Trial Judge, granting summary judgment in
favor of Plaintiff, Josephine Wapp, on her
claims of financial exploitation by her grandson. After a de novo review, we conclude that
the record supports the trial court’s decision to
grant summary judgment to Plaintiff on her
breach of contract claim. Plaintiff has shown
that Defendant entered into a series of contracts with Plaintiff, that Defendant breached
the contracts when he failed and/or refused to
repay her, and that Plaintiff suffered damages
as a result of Defendant’s breaches. As to Plaintiff’s fraud claim, the record shows Defendant
made material misrepresentations that he either knew to be false or made them recklessly
without regard to their truth in obtaining loans
with promises to repay monies he could not
afford to repay. Plaintiff clearly relied on these
statements to her detriment. The undisputed
evidentiary materials attached to Plaintiff’s
motion for summary judgment sufficiently
establish her claim of fraud. We find no error in
the entry of summary judgment in Plaintiff’s
favor against Defendant, and we affirm the
trial court’s order. AFFIRMED. Opinion from
the Court of Civil Appeals, Division IV, by
Wiseman, P.J.; Barnes, C.J., and Goodman, J.,
concur.
Friday, November 14, 2014
112,322 — Kane Smith, Plaintiff/Appellee,
vs. Shane Hannaford and Roy Hannaford,
Defendants/Appellants. Appeal from an order
of the District Court of Tulsa County, Hon. Carlos Chappelle, Trial Judge, granting summary
judgment in favor of Smith. The issue on
appeal is whether Smith is entitled to judgment
as a matter of law. Shane and Roy Hannaford
failed to show that the trial court erred in
determining that Kane Smith is entitled to
judgment as a matter of law on his breach of
contract claim. However, the record is completely silent on any factual or legal basis to
grant summary judgment on Smith’s remain2712
Friday, November 21, 2014
112,086 — BancFirst, an Oklahoma state
banking corporation, Plaintiff/Appellee, vs.
Impressive Design Concepts, LLC, an Oklahoma limited liability company; Larry D. Pinson,
an individual; and Lennelle O. Pinson, an individual, Defendants/ Appellants. Appeal from
the District Court of Tulsa County, Hon. Daman
Cantrell, Trial Judge. Impressive Design Concepts, LLC, (Borrower) and Larry D. Pinson,
and Lennelle O. Pinson (collectively “Guarantors”) appeal the trial court’s order denying
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Vol. 85 — No. 34 — 12/20/2014
their motion to vacate an order granting BancFirst summary judgment in an action brought
on a promissory note (Note). The undisputed
facts clearly establish the existence of the Note,
security agreement, and guaranty agreements,
that BancFirst is a secured party, Borrower is in
default under the terms of the Note and security agreement, and Guarantors are in default
under the terms of the guaranty agreements.
The trial court’s order denying Defendants’
motion to vacate an order granting BancFirst
summary judgment is therefore affirmed.
AFFIRMED. Opinion from the Court of Civil
Appeals, Division IV, by Goodman, J.; Barnes,
C.J., and Wiseman, P.J., concur.
Tuesday, November 25, 2014
112,585 — Helms & Underwood, an Oklahoma General Partnership, Plaintiff/ Appellee,
vs. C.A. Crouch, individually and as CEO of
C.A. Crouch Companies, L.L.C., Defendants/
Appellants. Appeal from the District Court of
Oklahoma County, Hon. Bill Graves, Trial
Judge. Defendants C.A. Crouch (Crouch), individually and as CEO of C.A. Crouch Companies, L.L.C. (CACC) (collectively, Defendants),
appeal the trial court’s order dismissing their
counterclaim with prejudice. We find the trial
court erred when it denied Defendants an
opportunity for their day in court. We do not
pass on the merits of any of the parties’ pleadings, theories of recovery, or defenses. The trial
court’s order granting judgment to Plaintiff
should have been vacated upon request. Thus,
the trial court’s order denying Defendants’
petition to vacate was error, and is itself vacated. The matter is remanded to the trial court
for further proceedings. VACATED AND
REMANDED. Opinion from the Court of Civil
Appeals, Division IV, by Goodman, J.; Barnes,
C.J., and Wiseman, P.J., concur.
113,125 — Green Tree Servicing LLC, Plaintiff/Appellee, vs. Jeffrey A. Phillips and Lee
Ann Houde, Defendant/Appellant. Appeal
from the District Court of Comanche County,
Hon. Emmitt Tayloe, Trial Judge. Debtors Jeffrey A. Phillips and Lee Ann Houde appeal the
trial court’s order granting summary judgment
to Green Tree Servicing, LLC (GTS), on its foreclosure suit against Debtors. We find GTS, as
holder of the Note, has standing to sue. Further, we agree the evidence supports the trial
court’s finding that the loan is not covered by
HAMP. Although GTS as the loan servicer participates in HAMP and has solicited WIMC as
the owner of the Note to participate in HAMP,
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WIMC has declined to do so, and therefore
compliance with that program is not required
before the Note may be enforced. The Trial
court’s order granting summary judgment is
affirmed. AFFIRMED. Opinion from the Court
of Civil Appeals, Division IV, by Goodman, J.;
Barnes, C.J., and Wiseman, P.J., concur.
112,449 — Williams & Williams Marketing
Services, Inc., and Hartford Underwriters
Insurance Co., Petitioners, vs. Denise Renee
Brewer and The Workers’ Compensation Court,
Respondents. Proceeding to review an Order
of the Workers’ Compensation Court, Hon.
Eric W. Quandt, Trial Judge. Employer, Williams & Williams Marketing Services, Inc., and
Hartford Underwriters Insurance Co., seek
review of a workers’ compensation order finding Claimant, Denise Renee Brewer, was an
employee whose job-related injuries were compensable under the Workers’ Compensation
Act. Based on our review of the evidence, and
guided by 85 O.S.2001 and Supp. 2011, §
340(D), we conclude the trial court’s order is
not contrary to law, nor is it against the clear
weight of the evidence. Finding no grounds
upon which we may modify, reverse, remand,
or set aside the order, the order is sustained.
SUSTAINED. Opinion from the Court of Civil
Appeals, Division IV, by Goodman, J.; Barnes,
C.J., and Wiseman, P.J., concur.
Wednesday, November 26, 2014
112,470 — American Eagle Title Insurance
Company and Lawyers Title of Oklahoma City,
Inc., Plaintiffs, vs. John D. Cooper, Sr., Trustee
of the John D. Cooper, Sr., 2005 Revocable
Trust, and Craig Hodgens, Defendants, and
John D. Cooper, Sr., Trustee of the John D. Cooper, Sr., 2005 Revocable Trust, Plaintiff/ Appellant, and Craig A. Hodgens, Plaintiff, vs. GBB
Properties, LLC, Defendant/ Appellee, and Michele Elizabeth Manuel, Spouse of Michele Elizabeth Manuel, if married; John Doe and Mrs.
John Doe, as Occupants of the Premises; Woodcreek Townhomes Assn.; Oklahoma County
Treasurer, Defendants. Appeal from an order of
the District Court of Oklahoma County, Hon.
Patricia Parrish, Trial Judge, granting summary
judgment to GBB Properties, LLC, and foreclosing GBB’s lien on real property. The issue on
appeal is whether GBB is entitled to judgment as
a matter of law granting priority to its mortgage
based on equitable subrogation. After de novo
review pursuant to Supreme Court Rule 1.36, 12
O.S.2011, ch. 15, app. 1, we conclude that material fact issues remain in dispute precluding
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summary judgment. Accordingly, we reverse the
summary judgment granted in GBB’s favor and
remand for further proceedings. REVERSED
AND RE-MANDED FOR FURTHER PROCEEDINGS. Opinion from the Court of Civil Appeals,
Division IV, by Wiseman, P.J.; Barnes, C.J., and
Goodman, J., concur.
112,555 — Mary Fletcher, Petitioner, v. ABM
Industries, Inc., Indemnity Insurance Company of North America, and the Workers’ Compensation Court, Respondents. Proceeding to
review an Order of a three-judge panel of the
Workers’ Compensation Court, Hon. William
R. Foster, Trial Judge. The trial court found
Petitioner (Claimant) sustained a compensable
injury to her left knee as a result of an on-thejob accident. In its Order on review, the threejudge panel vacated the trial court’s order finding, in effect, that the major cause of Claimant’s
left knee injury was degenerative in nature and
unrelated to her employment. Both the medical
report submitted by Claimant, and the medical
report of the independent medical examiner
submitted by Employer, reveal significant
degenerative disease in Claimant’s left knee.
The medical report submitted by Claimant
suggests that a certain “extruded meniscus” in
the left knee may not have been the result of
degenerative disease but may have been caused
by the on-the-job accident. However, in our
application of the against-the-clear-weight-ofthe-evidence standard of review on appeal, we
will not lightly displace the judgment of the
lower court (in this case, the findings of the
three-judge panel). We must show great deference to the lower court’s determinations of the
credibility of the witnesses and the weight to
be given their testimony. Based on our review
of all the evidence in this case, we conclude the
Order of the three-judge panel is not clearly
against the weight of the evidence and, therefore, we sustain. SUSTAINED. Opinion from
Court of Civil Appeals, Division IV, by Barnes,
C.J.; Wiseman, P.J., and Goodman, J., concur.
Wednesday, December 3, 2014
112,072 — In re: Application of Texoma Utility for the Return of Allegedly Stolen or Embezzled Property, et al., Jeremy Richardson d/b/a
Richardson Pawn Shop, Plaintiff/Appellant,
vs. Roger Key Equipment Co., Johnny Watkins,
Wendol Rice, Donnie Waller, Kyle Richardson,
and Herb Manning, Defendants/Appellees.
Appeal from an order of the District Court of
Pontotoc County, Hon. Thomas S. Landrith,
Trial Judge, ordering the return of personal
2714
property obtained from Defendants Roger Key
Equipment Co., Donnie Waller, Johnny Watkins, Wendol Rice, Kyle Richardson, and Herb
Manning, by “bogus/forged checks” given by
Jess Parsons, a non-party to this lawsuit. The
trial court found that, although Jeremy Richardson d/b/a Richardson Pawn Shop (Pawnbroker) may be able to obtain title against Jess
Parsons pursuant to 59 O.S.2011 § 1508(B), and
as the buyer of illegally obtained property may
be entitled to restitution from Parsons, Pawnbroker has no title against the original property
owners. We agree with the trial court’s interpretation of § 1508(B). This provision states in
relevant part that if “the holding period has
expired and has not been extended, the hold
order shall be considered expired and no longer in effect and title shall vest in the pawnbroker
subject to any restrictions contained in the pawn
contract.” (Emphasis added.) Even if we conclude the hold expired in this case, title vested
in Pawnbroker against all the world but Defendants as the “legal” or “true” owners of the
property. We thus affirm the trial court’s decision granting Defendants the return of their
personal property, but modify the order to
exclude Johnny Watkins for the reasons stated
in the Opinion. AFFIRMED AS MODIFIED.
Opinion from the Court of Civil Appeals, Division IV, by Wiseman, P.J.; Barnes, C.J., and
Goodman, J., concur.
ORDERS DENYING REHEARING
(Division No. 1)
Wednesday, November 12, 2014
112,483 — In Re the Marriage of: Denise M.
Schweigert, Petitioner/Appellee, vs. Tony W.
Schweigert, Respondent/Appellant. Appellant’s Petition for Rehearing filed November 5,
2014 is DENIED.
Wednesday, November 19, 2014
110,427 — Riverview Park Estates, LLC,
Plaintiff, vs. Imperial Investments LLC, Defendant/Appellant, Stephen C. Pereff, Steven N.
Pereff, Steve Pereff, Inc., Pereff Properties,
Michael J. King, S. Gregory Pittman, and Winters, King & Associates, Inc., Defendants, Waring T. Fulton, J.A. Smith, Ron Mitchell, Owl
Creek Boat Yard and Storage, Inc., Smith Heritage LLC, and Harvard Heritage Trust, ThirdParty Defendants, Riverside Lots, LLC and
Paloma Capital, LLC, Additional Third-Party
Defendants/Appellees, vs. Imperial Investments, LLC and Stephen C. Pereff, Defendants
on Crossclaim of Additional Third-Party
The Oklahoma Bar Journal
Vol. 85 — No. 34 — 12/20/2014
Defendants, Steven R. Hickman and Frasier,
Frasier & Hickman, LLP, Third-Party Defendants on Third-Party Petition of Additional
Third-Party Defendants. Plaintiff/Appellant’s
Petition for Rehearing filed November 18, 2013
is DENIED.
111,388 (Companion with 110,427 and
111,576)(Consolidated with 111,393) — Riverview Park Estates, LLC, Plaintiff/Appellee/
Counter-Appellant, vs. Imperial Investments
LLC and Stephen C. Pereff, Defendants/Appellants/Counter-Appellee, and Stephen C. Pereff,
Steven N. Pereff, Steve Pereff, Inc., Pereff Properties, Michael J. King, S. Gregory Pittman, and
Winters, King & Associates, Inc., Defendants,
vs. Waring T. Fulton, John Smith, Ron Mitchell,
Owl Creek Boat Works and Storage, Inc., Smithheritage LLC, and Harvard Heritage Trust,
Third-Party Defendants/Counter-Appellants,
and Riverside Lots, LLC and Paloma Capital,
LLC, Additional Third-Party Defendants/Appellees. Appellant’s Petition for Rehearing filed
September 24, 2014 is DENIED
(Division No. 2)
Thursday, October 9, 2014
112,383 — Professional Drivers of Georgia,
Inc., and, American Casualty Co. of Reading,
PA., Petitioners, v. Rawley George Duntley, and
the Workers’ Compensation Court, Respondents. Petitioner’s Petition for Rehearing is
DENIED.
Monday, October 27, 2014
111,405 — Michelle G. Graves and Melissa S.
Kirk, Co-Administrators of the Estate of Jonathan L. Graves, Deceased; Michelle G. Graves,
Guardian of B.J.G., a minor; and Melissa S. Kirk,
Guardian of F.B.M., a minor, Plaintiffs/Appellees, v. Midwestern Equipment Co., an Oklahoma corporation; The American Crane Corp., a
North Carolina corporation, Defendants, Rockwell Automation, Inc., a Delaware corporation,
Defendant/Appellant, Conagra Foods, Intervenor. Appellees’ Petition for rehearing is hereby
DENIED.
(Division No. 3)
Thursday, October 23, 2014
112,008 (Comp. w/112,176) — Jose V. Lemus,
Plaintiff/Appellee, vs. State of Oklahoma ex rel.
Department of Public Safety, Defendant/Appellant. Appellee’s Petition for Rehearing and Brief,
filed October 9, 2014, is DENIED.
Vol. 85 — No. 34 — 12/20/2014
112,022 — KRK Interest, L.L.C., Plaintiff/
Appellant, vs. Altex Energy Corporation, Defendant/Counter-Claimant/Third-Party Plaintiff/
Appellee, vs. Jeanine Greene and Darron Greene,
Individually and d/b/a Land Consultants, Inc.,
Third-Party Defendants. Appelland KRK Interest, L.L.C.’s Petition for Rehearing Combined
with Brief in Support, filed September 18, 2014,
is DENIED.
112,636 — Brent Lee Loveland, Plaintiff/
Appellant, vs. Michael Ray Gundy and Kirsten
L. Gundy, Husband and Wife, Defendants/
Appellees. Appellant’s Petition for Rehearing
and Brief in Support, filed October 9, 2014, is
DENIED.
Tuesday, November 25, 2014
111,651 — Adudell Lincoln Plaza Hotel
d/b/a Renaissance Center, L.L.C., an Oklahoma Limited Liability Company, Plaintiff/
Appellee/Counter-Appellant, vs. Certain Underwriters at Lloyd’s of London, Defendant/
Appellant/Counter-Appellee, and Insurance
Professionals II, an Oklahoma Corporation,
Defendant. Defendant’s/Appellant’s Petition
for Limited Rehearing, filed October 27, 2014,
is DENIED.
Tuesday, December 2, 2014
111,628 — Samson Resources Company,
Plaintiff/Appellee, vs. Advanced Petroleum
Lifting Systems, Inc., Advanced Petroleum
Lifting Systems, L.L.C., and Richard Gouin,
De-fendants/Appellants. Appellants’ Petition
for Rehearing and Brief in Support, filed
November 10, 2014, is DENIED.
112,636 — Brent Lee Loveland, Plaintiff/
Appellant, vs. Michael Ray Gundy and Kirsten
L. Gundy, Husband and Wife, Defendants/
Appellees. Appellees’ Petition for Rehearing
and Brief in Support, filed October 27, 2014, is
DENIED.
(Division No. 4)
Wednesday, November 12, 2014
112,602 — William F. Letcher, DMD, Appellant, and William F. Letcher, DMD, INC.,
Appellants v. Pamela Hambright, Appellee.
Appellant’s Petition for Rehearing is DENIED.
The Oklahoma Bar Journal
2715
CLASSIFIED ADS
SERVICES
SERVICES
BRIEF WRITING, APPEALS, RESEARCH AND DISCOVERY SUPPORT. Eighteen years experience in civil
litigation. Backed by established firm. Neil D. Van
Dalsem, Taylor, Ryan, Schmidt, Van Dalsem & Williams PC, 918-749-5566, [email protected]
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]
OF COUNSEL LEGAL RESOURCES — SINCE 1992 —
Exclusive research & writing. Highest quality: trial and
appellate, state and federal, admitted and practiced
U.S. Supreme Court. Over 20 published opinions with
numerous reversals on certiorari. MaryGaye LeBoeuf
405-728-9925, [email protected]
MEDIATION or EXPERT WITNESS ON REAL ESTATE
and OIL/GAS TITLES – KRAETTLI Q. EPPERSON.
Available as a Mediator or as an Expert, for litigation or
appeals on Real Estate and Oil/Gas Title matters. Over
thirty years of experience in title examination and title
litigation. OCU Adjunct Law Professor (Oklahoma
Land Titles). OBA Real Property Law Section Title Examination Standards Committee Chair. General Editor
of Vernon’s Oklahoma Forms 2d: Real Estate. Interested
in unusual and complex title issues. Many papers presented or published on real estate and oil/gas matters,
especially title issues. Visit www.EppersonLaw.com, &
contact me at [email protected] or 405-848-9100.
Appeals and litigation support
Expert research and writing by a veteran generalist
who thrives on variety. Virtually any subject or any
type of project, large or small. NANCY K. ANDERSON, 405-682-9554, [email protected]
Creative. Clear. Concise.
BUSINESS VALUATIONS: Marital Dissolution * Estate, Gift and Income Tax * Family Limited Partnerships * Buy-Sell Agreements * Mergers, Acquisitions,
Reorganization and Bankruptcy * SBA/Bank required.
Dual Certified by NACVA and IBA, experienced, reliable, established in 1982. Travel engagements accepted.
Connally & Associates PC 918-743-8181 or bconnally@
connallypc.com.
HANDWRITING IDENTIFICATION
POLYGRAPH EXAMINATION
Board Certified
Diplomate — ABFE
Life Fellow — ACFEI
Arthur D. Linville
Court Qualified
Former OSBI Agent
FBI National Academy
405-736-1925
Want To Purchase Minerals AND OTHER
OIL/GAS INTERESTS. Send details to: P.O. Box
13557, Denver, CO 80201.
2716
INTERESTED IN PURCHASING PRODUCING &
NON-PRODUCING Minerals; ORRI; O & G Interests.
Please contact: Patrick Cowan, CPL, CSW Corporation,
P.O. Box 21655, Oklahoma City, OK 73156-1655; 405755-7200; Fax 405-755-5555; email: [email protected]
OFFICE SPACE
WATERFORD OFFICE SPACE. 1,324 Rentable Space in
Waterford Bldg. 6301, 4th Floor, North View. Two large
executive offices, conference room/foyer, and kitchen/
file room. Great build-out with hardwood floors and
crown molding. Call 405-202-2111.
EXECUTIVE OFFICE SUITES. Two blocks from District & Federal Courthouses. Receptionist, phones,
copier, internet, and cable provided. Six established attorneys available for referrals on a case-by-case basis.
Midtown Plaza location. 405-272-0303.
Office Space - MidTown Law Center
Lease - 2 offices available, restored 1926 building.
Rent includes phone, fax and LD, parking, internet,
kitchen privileges, 2 conf. rooms, receptionist and
basement storage. Six attorneys with some referrals.
405-229-1476 or 405-204-0404
DOWNTOWN OKC OFFICE SPACE FOR LEASE2,2123sq ft office space located in the BC Clark building. 5 large office/conference rooms, large waiting/reception area, break room with sink & mini fridge and
copier area. $2500 mo, electric & water included.
405-326-7554 or 580-924-1515.
LUXURY OFFICE SPACE - One office available for
lease in the Esperanza Office Park near NW 150th and
May Avenue in Edmond. Fully furnished reception area,
receptionist, conference room, complete kitchen, fax,
high-speed internet, building security and free parking.
$670 per month. Call Gregg Renegar at 405-285-8118.
2,350 SQ. FT., NEW OFFICE SPACE FOR LEASE near
NW Exp. & Classen. 7 windowed offices, separate entry/reception area, supply/server room. Conference
room, full kitchen, storage and free parking shared
with adjoining law firm. $3,550 mo., including utilities.
Contact Helen Smith, 405-235-8318.
The Oklahoma Bar Journal
Vol. 85 — No. 34 — 12/20/2014
OFFICE SPACE
POSITIONS AVAILABLE
OFFICE SPACE FOR LEASE Directly across the street
from Oklahoma County Office Building and Courthouse
– 6 private offices, 3 open offices. 1,644 sf of office space
+ 882 sf of common area: reception, conference room,
and kitchen. Ideal for small law firm. Underground access to courthouses, parking, and major downtown
buildings via concourse. Adjacent parking & on-site storage also available. Call 405.232.4606.
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]
LAWTON LAW OFFICE BUILDING FOR LEASE 711
SW C Avenue approximately 2,800 square feet, 1.5
blocks west of Comanche County Courthouse on main
east/west Lawton downtown thoroughfare. Former
offices of Ashton, Wisener and Munkacsy, PC (all now
retired). Large reception area. Private offices for staff and
attorneys. Three conference rooms. Wired for network
and central printer. Two small kitchen areas. Three
bathrooms. Centralized file room. Call 580-647-4955 or
580-248-2120 for more information and viewing.
POSITIONS AVAILABLE
CHILD SUPPORT SERVICES (CSS), a division of the
Oklahoma Department of Human Services Announcement #14-M143U, Recruitment #141219-UNCE-187,
ATTORNEY IV – Oklahoma OCSS III. CHILD SUPPORT SERVICES is seeking a full-time attorney for our
Midwest City District Office located at 9901 SE 29th
Street, Midwest City Oklahoma 73130. The position involves negotiation with other attorneys and customers
as well as preparation and trial of cases in child support hearings in district and administrative courts and
the direction of staff in the preparation of legal documents. In addition, the successful candidate will help
establish partnership networks and participate in community outreach activities within the service area in an
effort to educate others regarding our services and
their beneficial impact on families. Position will provide recommendations and advice on policies and programs in furtherance of strategic goals. In depth knowledge of family law related to paternity establishment,
child support, and medical support matters is preferred. Preference may also be given to candidates who
live in or are willing to relocate to the service area. Active membership in the Oklahoma Bar Association is
required. This position has alternate hiring levels. The
beginning salary is at least $42,771.00 annually with an
outstanding benefits package including health & dental insurance, paid leave & retirement. Interested individuals must apply at www.jobs.ok.gov – a résumé,
three reference letters, and a copy of current OBA card
must be included. Announcement will open at 8:00 am
on December 19, 2014 and close at 11:59 pm on January
6, 2015. For additional information about this job opportunity, please email [email protected]
THE STATE OF OKLAHOMA IS AN EQUAL OPPORTUNITY EMPLOYER.
Vol. 85 — No. 34 — 12/20/2014
ASSISTANT GENERAL COUNSEL
The responsibilities of this position will include advising company’s management on a wide array of
issues including: human resources, intellectual property, bank operations, deposits, trusts and corporate
law; bank regulatory and compliance matters; litigation including oversight of external counsel; reviewing
and drafting complex documents including banking
forms and agreements and general contracts. This position will also work with other corporate attorneys in all
divisions of the Company including retail banking,
mortgage servicing and real estate. The qualified candidate will possess a law degree and must have 3-5
years of legal experience in either banking or general
corporate law with a law firm or financial institution.
Candidate must be licensed in Oklahoma or be willing
to pursue same immediately. The successful candidate
will have excellent academic credentials, strong drafting, negotiation and oral communication skills and
must possess the ability to manage large numbers of
projects simultaneously in a variety of legal areas. The
candidate must be able to work under pressure and
have good judgment and the ability to identify potential legal issues. Good writing, research and communication skills are required.
If you are interested in this position, please visit our
website to complete an on-line application:
www.midfirst.jobs JOB ID 7467.
Equal Opportunity Employer- M/F/Disability/Vets
OKLAHOMA CITY LAW FIRM seeking an associate
attorney with 0-2 years experience practicing in the
area of Social Security Disability law. Submit a confidential résumé and references to “Box B,” Oklahoma
Bar Association, PO Box 53036, Oklahoma City, OK
73152.
STAFF COUNSEL - Travelers Insurance Workers’ Compensation Senior Counsel. Travelers, a market leader
in the Property/Casualty Insurance Industry, has an
immediate opening in its Oklahoma City Office for
Experienced Counsel to handle Workers’ Compensation matters. Seven years of litigation or equivalent legal experience. Active license to practice law.
www.travelers.com/Careers 815598.
The Oklahoma Bar Journal
2717
POSITIONS AVAILABLE
POSITIONS AVAILABLE
COFFEY, SENGER & McDANIEL PLLC seeks a litigation attorney with 3 to 7 years of experience for their
South Tulsa and/or Oklahoma City office. Trucking
litigation experience is preferred. Please submit résumé and writing sample to [email protected]
STAFF COUNSEL - Travelers Insurance Workers’ Compensation Senior Counsel. Travelers, a market leader
in the Property/Casualty Insurance Industry, has an
immediate opening in Tulsa reporting to our Oklahoma City Office for Experienced Counsel to handle
Workers’ Compensation matters. Seven years of litigation or equivalent legal experience. Active license
to practice law.www.travelers.com/Careers 815598.
GENERAL COUNSEL OKLAHOMA PUBLIC EMPLOYEES RETIREMENT SYSTEM. The Oklahoma
Public Employees Retirement System (OPERS) is seeking applications for the position of General Counsel.
The individual in this position will serve as the primary legal counsel to the agency and the Board of Trustees. OPERS is a state agency that administers four retirement plans for approximately 81,000 state and local
government employees, elected officials, and state
judges. A fifth retirement plan will open to new state
employees on November 1, 2015. The General Counsel
represents the agency in all civil litigation including
administrative hearings and appeals unless outside
counsel is employed. The General Counsel provides
legal advice, develops administrative rules, and drafts
contracts. The General Counsel advises the Executive
Director and the Board of Trustees on all legal issues.
To be considered, an individual must have a J.D. degree and be a member in good standing of the Oklahoma Bar Association. This individual must have at
least five years of experience as a practicing attorney,
and must be able to effectively communicate verbally
and in writing. Excellent legal research and writing
skills are required. It is desirable that the individual
have knowledge of legal principles relating to public
retirement entities and state agencies. Salary will be
commensurate with relevant experience. To apply, send
an OPERS employment application (www.opers.ok.
gov/jobs), a résumé and a cover letter by email: dbyrd@
opers.ok.gov; FAX: 405-848-5964; or mail to OPERS,
ATTN: HR Manager, 5801 Broadway Ext., Suite 400,
Oklahoma City, OK 73118. To ensure full consideration,
applications should be received by 5:00 p.m., Monday,
January 5, 2015. Equal Opportunity Employer.
2718
OKC MIDTOWN LAW FIRM seeking attorney with 2
plus years experience in Family Law. Looking for applicants with strong communication skills, good work
ethic, motivated and comfortable in courtroom. Compensation is based on experience and includes benefits.
Please reply to “Box S,” Oklahoma Bar Association, PO
Box 53036, Oklahoma City, OK 73152.
CLASSIFIED INFORMATION
REGULAR CLASSIFIED ADS: $1 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 $50 per inch of depth.
DEADLINE: See www.okbar.org/members/BarJournal/
advertising.aspx or call 405-416-7018 for deadlines.
SEND AD (email preferred) stating number of times to be
published to:
[email protected], or
Emily Buchanan, Oklahoma Bar Association, PO Box 53036,
Oklahoma City, OK 73152.
Publication and contents of any advertisement are not to be
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The Oklahoma Bar Journal
Vol. 85 — No. 34 — 12/20/2014
Vol. 85 — No. 34 — 12/20/2014
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