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The Oklahoma Bar Journal
Vol. 88— No. 1 — 1/14/2017
Oklahoma Bar Association
table of
contents
Jan. 14, 2017 • Vol. 88 • No. 1
page
6
Index to Court Opinions
7 Opinions of Supreme Court
8 Opinions of Court of Criminal Appeals
26
Calendar of Events
27 Opinions of Court of Civil Appeals
60
Disposition of Cases Other Than by Publication
Vol. 88— No. 1 — 1/14/2017
The Oklahoma Bar Journal
5
Index to Opinions of Supreme Court
2016 OK 123 CHARLES DEAL and ANNETTE DEAL, Personal Representatives of the
Estate of Serenity Deal, Plaintiffs/Appellants, v. SEAN DEVON BROOKS, RANDY J.
LACK, and JENNIFER SHAWN, Defendants, and STATE OF OKLAHOMA ex rel.
OKLAHOMA DEPARTMENT OF HUMAN SERVICES, Defendant/Appellee. No.
113,979........................................................................................................................................................ 7
Index to Opinions of Court of Criminal Appeals
2016 OK CR 25 KENNETH LEE HOPKINS, Petitioner, v. THE HONORABLE WILLIAM
D. LAFORTUNE, JUDGE OF THE DISTRICT COURT FOR THE TWENTY-SIXTH
JUDICIAL DISTRICT; AND THE STATE OF OKLAHOMA, Respondents. No. PR2016-0757................................................................................................................................................... 8
2016 OK CR 28 DARREN LEE WELLS, Appellant, v. THE STATE OF OKLAHOMA,
Appellee. No. RE-2015-0575.................................................................................................................. 12
2016 OK CR 29 CHARLIE TUCKER, Appellant, vs. THE STATE OF OKLAHOMA,
Appellee. No. F-2015-472....................................................................................................................... 16
2016 OK CR 30 HILLARD A. FULGHAM, II, Appellant, v. STATE OF OKLAHOMA,
Appellee. No. F-2015-455.......................................................................................................................2 2
Index to Opinions of Court of Civil Appeals
2016 OK CIV APP 74 IN RE THE MARRIAGE OF: PATRICIA JOHNSON, Petitioner/
Appellee, vs. LEE JOHNSON, Respondent/Appellant. Case No. 112,766....................................2 7
2016 OK CIV APP 75 STATE OF OKLAHOMA ex rel., JOHN D. DOAK, INSURANCE
COMMISSIONER, Petitioner/Appellee, vs. Pride National Insurance Company,
Defendant, FIFTH THIRD BANK, Appellant. Case No. 113,454..................................................... 3 3
2016 OK CIV APP 76 JASON OLIVER STAUFF, Plaintiff/Appellant, vs. ROY AND KIMBERLY BARTNICK, Individuals, and PARAMOUNT HOMES REAL ESTATE CO., an
Oklahoma Corporation, Defendants/Appellees, and STUART BENGE, d/b/a STU
BENGE PLB. HTG. AC, and GREG PALMER ELECTRIC, LLC, an Oklahoma Limited
Liability Company, Defendants. Case No. 113,507............................................................................ 3 6
2016 OK CIV APP 77 KETCH, INC., an Oklahoma Corporation on Behalf of Itself and All
Others Similarly Situated, Plaintiff/Appellee, vs. ROYAL WINDOWS, INC., a Texas
Corporation, Defendant/Appellant. Case No. 113,986..................................................................... 43
2016 OK CIV APP 78 JANE BERRYMAN, ROBERTA GREENWELL, JOHN WOOD and
BONNIE CAIN, VICTOR TRUMBELL and TRINA MEHOJAH (formerly Trina
Jankowsi), Appellants, vs. OKLAHOMA CORPORATION COMMISSION, Appellee.
Case No. 114,322...................................................................................................................................... 48
2016 OK CIV APP 79 JAMES LLOYD BOGDANICH SANDERS, an individual, and LEE
CLACK, individually and as Personal representative of the ESTATE OF GEORGE R.
BOGDANICH, Plaintiffs/Appellants, vs. RIVER PARKS AUTHORITY, an Oklahoma
Public Trust Authority, Defendant/Appellee. Case No. 114,823..................................................... 56
6
The Oklahoma Bar Journal
Vol. 88— No. 1 — 1/14/2017
Opinions of Supreme Court
Manner and Form of Opinions in the Appellate Courts;
See Rule 1.200, Rules — Okla. Sup. Ct. R., 12 O.S. Supp. 1996 (1997 T. 12 Special Supplement)
2016 OK 123
CHARLES DEAL and ANNETTE DEAL,
Personal Representatives of the Estate of
Serenity Deal, Plaintiffs/Appellants, v. SEAN
DEVON BROOKS, RANDY J. LACK, and
JENNIFER SHAWN, Defendants, and STATE
OF OKLAHOMA ex rel. OKLAHOMA
DEPARTMENT OF HUMAN SERVICES,
Defendant/Appellee.
No. 113,979. December 12, 2016
DONE BY ORDER OF THE SUPREME
COURT IN CONFERENCE THIS 12TH DAY
OF DECEMBER, 2016.
/s/ Noma D. Gurich
VICE CHIEF JUSTICE
VOTE ON DENIAL OF CERTIORARI:
GURICH, V.C.J., KAUGER, WATT, EDMONDSON, COLBERT, REIF, JJ. - CONCUR
WINCHESTER, TAYLOR, JJ. - DISSENT
ORDER
COMBS, C.J. - NOT PARTICIPATING
Defendant/Appellee’s petition for certiorari
is denied. The Court of Civil Appeals’ opinion
is approved for publication and accorded precedential value.
VOTE TO APPROVE COURT OF CIVIL
APPEALS’ OPINION FOR PUBLICATION:
GURICH, V.C.J., WATT, EDMONDSON,
COLBERT, REIF, JJ. - CONCUR
KAUGER, WINCHESTER, TAYLOR, JJ. DISSENT
COMBS, C.J. - NOT PARTICIPATING
INTEREST ON JUDGMENTS
January 2017
Find the new postjudgment and
prejudgment rates at
goo.gl/S7VAPs
Vol. 88— No. 1 — 1/14/2017
The Oklahoma Bar Journal
7
Court of Criminal Appeals Opinions
2016 OK CR 25
KENNETH LEE HOPKINS, Petitioner, v.
THE HONORABLE WILLIAM D.
LAFORTUNE, JUDGE OF THE DISTRICT
COURT FOR THE TWENTY-SIXTH
JUDICIAL DISTRICT; AND THE STATE OF
OKLAHOMA, Respondents.
No. PR-2016-0757. December 22, 2016
ORDER DENYING EXTRAORDINARY
RELIEF, LIFTING STAY AND
REMANDING MATTER TO THE
DISTRICT COURT
¶1 On August 19, 2016, Petitioner, by and
through counsel Patrick Adams, filed an Emergency Petition for Writ of Prohibition and/or
Mandamus and a motion for suspension of the
Ten-Day Rule requirement of Rule 10.2, Rules of
the Oklahoma Court of Criminal Appeals, Title 22,
Ch.18, App. (2016). Petitioner seeks extraordinary relief from the order of the District Court of
Tulsa County in Case No. CF-2016-530 denying
Petitioner’s motion to dismiss based upon a violation of the Interstate Agreement on Detainers
Act (“IAD”), 22 O.S.2011, §§ 1345-1349.
¶2 Petitioner was charged with two counts of
First Degree Murder on February 2, 2016. At
the time Petitioner was charged, he was in federal custody in Leavenworth, Kansas, on an
unrelated matter. Pursuant to the State’s
request for temporary custody under Article
IV of the IAD, Petitioner arrived at the Tulsa
County Jail on March 24, 2016. On August 5,
2016, Petitioner filed a motion to dismiss for
violation of the IAD. Following a hearing on
Petitioner’s motion, the motion was denied in
an order issued by the Honorable William
LaFortune, District Judge, on August 18, 2016.
¶3 Petitioner seeks a writ of prohibition from
this Court prohibiting the trial court from proceeding further in this case and a writ of mandamus directing the trial court to dismiss the
Information for the reason that the 120 day
time limit mandated by the IAD expired,
divesting the trial court of jurisdiction to proceed.
¶4 In an Order issued August 23, 2016, all
proceedings were stayed in the District Court
and the Respondent, or his designated repre8
sentative, was directed to file a response to
Petitioner’s application to this Court. The
response, by and through Stephen A. Kunzweiler, District Attorney, and James D. Dunn,
Assistant District Attorney, as the designated
representatives for the Honorable William D.
LaFortune, District Judge, was filed in this
Court on September 7, 2016.
I. RECORD
¶5 The record before this Court reveals the
following:
2/02/2016
Petitioner was charged in Tulsa
County District Court with two
counts of Murder in the First
Degree.
2/12/2016The State filed an IAD Request for
Temporary Custody. The request
was made pursuant to Article IV of
the IAD, agreeing to bring Petitioner to trial within the time specified in Article IV of the IAD, and
the request was signed by James
D. Dunn on February 5, 2016.
2/16/2016
Petitioner transmitted an IAD
Request for final disposition of all
untried indictments, informations
or complaints. The Warden of the
Federal Prison at Leavenworth,
Kansas, sent a letter to the Tulsa
District Attorney stating Petitioner
requests disposition of pending
charges pursuant to Article III of
the IAD, with the necessary forms
and stating that Petitioner is projected to be released from Leavenworth on February 5, 2017.
2/19/2016Written notice received by the District Attorney’s office.
3/24/2016Petitioner was booked into custody of the Tulsa County Sheriff.
3/28/2016At initial appearance the Preliminary Hearing was set for May 16,
2016.
5/16/2016The State requested a continuance.
The continuance was granted over
Petitioner’s objection. The Preliminary Hearing was rescheduled for
The Oklahoma Bar Journal
Vol. 88— No. 1 — 1/14/2017
umentation. Counsel received
another Document after court
from Jimmy Dunn, Assistant District Attorney on 8/12/16. Counsel for Defendant after reviewing
the new documentation hereby
re-urges the Original Motion to
Dismiss filed on 8/5/16.”
June 27, 2016 — twenty-six days
before the expiration of the 120
day requirement under the IAD.
6/27/2016The Preliminary Hearing was held
before Special Judge James Keeley.
The hearing was continued to July
11, 2016 — twelve days before the
expiration of the 120 day requirement under the IAD.
7/11/2016The Preliminary Hearing was concluded. Petitioner was bound over
for trial and District Court Arraignment was set for August 8, 2016.
7/21/2016
Petitioner filed a motion for a
speedy trial pursuant to the IAD.
7/23/2016120 calendar days after Petitioner
was booked into Tulsa County.
8/05/2016Petitioner filed “Defendant’s Motion to Dismiss For Violation of the
Interstate Agreement on Detainers
Act” for failure to bring him to trial
within the statutory time period.
8/08/2016Petitioner arraigned before Judge
LaFortune and his Motion to Dismiss is scheduled for hearing on
August 12, 2016.
8/12/2016
Petitioner’s counsel withdrew
argument regarding the Motion to
Dismiss.
8/15/2016Petitioner filed “Defendant’s
Motion to Re-Urge Defendant’s
Motion to Dismiss for Violation of
the Interstate Agreement on Detainers Act.” This motion states:
“Undersigned counsel originally
filed the Motion to Dismiss for
violation of the Interstate Agreement on Detainers Act on 8/5/16.
On 8/8/16 Jimmy Dunn, Assistant District Attorney, provided
documentation suggesting that
the Defendant initiated the
Detainer at issue. On 8/12/16
counsel withdrew argument
regarding the Motion to Dismiss
citing a need to look at the new
documentation to make the
appropriate argument. Counsel
further argued that the Motion
would likely be re-urged after
more analysis of the new doc-
Vol. 88— No. 1 — 1/14/2017
8/17/ 2016180 calendar days after Petitioner’s
Article III notice received by the
District Attorney’s office.
¶6 At the hearing held in the District Court
on Petitioner’s motion to dismiss on August 8,
2016, the transcript reflects that James Dunn,
Assistant District Attorney, advised the court
that it was Petitioner who requested under
Article III of the IAD that he be brought to trial
on the pending Information within 180 days.
The prosecutor asked for the first available jury
trial setting and that the trial court deny Petitioner’s motion to dismiss. Counsel for Petitioner argued that it was 120 days, under Article
IV, and that the prosecutor must have documents that they had not seen, if their argument
was that this was under Article III, and not
under Article IV. Judge LaFortune set a trial date
of August 29, 2016, and also continued the hearing on the motion to dismiss to August 12, 2016.
¶7 The hearing on Petitioner’s motion was
held on August 16, 2016, but was continued to
August 18, 2016, at the prosecutor’s request
and over the objection of Petitioner. The transcript of the August 18, 2016, hearing on Petitioner’s August 5, 2016, motion to dismiss for a
violation of the IAD reflects that the District
Attorney’s Office submitted a “Request for
Temporary Custody” pursuant to Article IV,
dated February 5, 2016, signed by the Honorable Martha Carter, Special Judge, on February
10, 2016, and filed on February 12, 2016. However, the record also reflects that Petitioner initiated a request for disposition of pending
charges which is dated February 16, 2016, and
that it was received by the District Attorney’s
Office on February 19, 2016. The letter from the
Federal Prison Warden, received with the
request for disposition, requests submission of
a “Prosecutor’s Acceptance of Temporary Custody Offered in Connection with a Prisoner’s
Request for Disposition of Detainer,” pursuant
to Article III of the IAD. Limited strictly to calendar days, the 120 days expired under Article
IV on July 23, 2016; under Article III, the 180
days expired August 17, 2016.
The Oklahoma Bar Journal
9
¶8 When both the State initiates proceedings
under Article IV and the defendant initiates
proceedings under Article III, the question
becomes whether the time limits under Article
IV or under Article III applies. Under Article IV
when the State initiates a transfer, the trial
must begin no later than 120 days from the
date the defendant arrives in that jurisdiction.
Under Article III, when the defendant initiates
a transfer, the time limit is 180 days from the
date of receipt of the prisoner’s request. After
reviewing the different approaches from other
courts across the country addressing this issue,
we previously held in Ullery v. State, 1999 OK
CR 36, ¶ 10, 988 P.2d 332, 341, that the best
approach would be to compute the time under
each Article and see which time limit expired
first. We now find it is time to revisit this issue
in light of the multitude of changes that have
occurred over the past seventeen years with
regard to IADs and the criminal justice system.
¶9 Since our decision in Ullery, the law relating to IAD has evolved. Of particular note is
the United States Supreme Court’s decision in
New York v. Hill wherein the Court held that a
defendant can implicitly waive the IAD’s time
constraints by accepting treatment inconsistent
with the IAD’s time limits. 528 U.S. 110, 118,
120 S.Ct. 659, 666, 145 L.Ed.2d 560 (2000).
Moreover, this Court cannot ignore the fact
that since Oklahoma’s adoption of the IAD in
1977, the government’s ability to swiftly adjudicate criminal prosecutions has become more
and more challenging. Hence, we now find
that when both the State and the defendant
initiate transfer under the IAD, the defendant’s
Article III filing implicitly and automatically
waives those Article IV procedures favorable
to the defendant. In the present case, Petitioner
completed an IAD transfer form expressly
requesting disposition under Article III. This
action on his part constituted a waiver of any
rights he may have had as the result of the
State’s Article IV request. See Matthews v. Kentucky, 168 S.W.3d 14, 18-19 (Ky. 2005). The time
limit under Article III, 180 days, expired August
17, 2016. Ullery, insofar as it is inconsistent with
this holding, is hereby overruled.
¶10 At the conclusion of the hearing on Petitioner’s motion to dismiss on August 18, 2016,
Judge LaFortune concluded that forty-two
days between June 27, 2016, and August 8,
2016, were tolled based on Petitioner’s failure
to object under the IAD or invoke the provisions of the IAD. Tolling forty-two days, Judge
10
LaFortune concluded that trial would have to
commence no later than September 19th. Jury
trial was scheduled for August 29th.
II. RESPONSE
¶11 In the Response to Petitioner’s application filed in this Court on September 7, 2016,
the State argues that (1) “[t]he trial court correctly determined that the ‘speedy trial’ provision contained within 22 O.S. § 1347, Art. IV(c)
had been tolled”; and, (2) “[b]y not objecting to
a District Court arraignment setting beyond
the expiration of the speedy trial provision
contained in 22 O.S. § 1347, Art. IV(C), Petitioner waived the same.” Respondent cites
Ullery v. State, 1999 OK CR 36, ¶¶ 11-13, 1088
P.2d 332, 341-342, in support of the argument
that the tolling of the time period from June 27,
2016, thru July 11, 2016, was a necessary and
reasonable continuance granted for good cause.
Respondent states that the good cause was for
the Magistrate to review the recorded interview of Petitioner as well as an additional
exhibit offered by the State to which Petitioner
did not object.
¶12 Respondent also argues that the period
between July 11, 2016, through August 8, 2016,
was tolled because Petitioner failed to object on
July 11, 2016, when arraignment was set for
August 8, 2016, “or otherwise invoke the provisions of the IAD at the conclusion of the preliminary hearing proceedings held on July 11,
2016.” Citing Ullery, the State asserts that this
period was tolled “as such was a necessary and
reasonable continuance granted for good cause.”
¶13 Respondent’s second argument is that
because Petitioner agreed to a District Court
arraignment date beyond the 120 day statutory
period to bring him to trial, that Petitioner
waived the 120 day provision of the IAD.
Respondent cites New York v. Hill in support of
this argument. In Hill defense counsel agreed
to a trial date outside the time period. Id., 528
U.S. at 113, 120 S.Ct. at 663. The Supreme Court
held that this effectively waived the defendant’s rights under the IAD. Id., 528 U.S. at 118,
120 S.Ct. at 666.
III. REPLY
¶14 On September 15, 2016, Petitioner filed a
Request for Leave of Court to File Reply Brief
and tendered for filing the Reply Brief. Petitioner’s motion to file a Reply Brief is GRANTED.
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Vol. 88— No. 1 — 1/14/2017
¶15 Petitioner argues that the State failed to
show any “good cause” delays and failed to
show Petitioner was not available, the only two
reasons to toll in an IAD analysis. Petitioner
cites Bell v State, 1986 OK CR 14, 714 P.2d 205,
in support of his argument, wherein it took 109
days to complete the preliminary hearing and
in which no delays could be attributed to the
defendant. In Bell this Court found detainers
can be extended by the proper tolling of the
statute, but the record must support the good
causes offered for that tolling. Id., 1986 OK CR
14, ¶ 7, 714 P.2d at 206.
¶16 Addressing waiver, Petitioner argues
that Hill and Ullery are distinguished from the
present case in that in both of those cases the
parties were discussing a trial date. Petitioner
contends that it is the trial date that is the “finish line,” not any other date or setting and that
in the present case there was never an opportunity to even discuss a trial date “as the State
completely dragged their feet and proceeded
in a lethargic and apathetic manner.”
IV. CONCLUSION
¶17 For a writ of prohibition, Petitioner must
establish: (1) a court, officer or person has or is
about to exercise judicial or quasi-judicial
power; (2) the exercise of said power is unauthorized by law; and (3) the exercise of said
power will result in injury for which there is no
other adequate remedy. Rule 10.6(A), Rules of
the Oklahoma Court of Criminal Appeals, Title 22,
Ch.18, App. (2016). For a writ of mandamus,
Petitioner has the burden of establishing that
(1) he has a clear legal right to the relief sought;
(2) the respondent’s refusal to perform a plain
legal duty not involving the exercise of discretion; and (3) the adequacy of mandamus and
the inadequacy of other relief. Rule 10.6(B).
¶18 A defendant seeking dismissal of charges
based upon the State’s failure to try him within
the statutorily mandated time period specified
in the IAD need only show that he was not
timely tried and that the delay was not his
fault. Gallimore v. State, 1997 OK CR 46, ¶ 29,
944 P.2d 939, 945. The burden then shifts to the
State to explain why the charges against the
defendant should not be dismissed and why
the statutory time limit was properly tolled. Id.
¶19 Ullery directs us to examine the record to
discover whether these time limits were tolled
by either (1) necessary and reasonable continuances that were granted for good cause in open
court or (2) delays occasioned by the defenVol. 88— No. 1 — 1/14/2017
dant. Id., 1999 OK CR 36, ¶ 11, 988 P.2d at 341.
We find that the record supports a finding that
the time was tolled for thirteen days from June
27, 2016, to July 11, 2016, when the trial judge
at the conclusion of the preliminary hearing
took the matter under advisement. We also
find that the time was tolled from July 11, 2016,
to August 8, 2016, when Petitioner failed to
object when District Court arraignment was
set. Three days were also tolled from August
12, 2016, to August 15, 2016, when Petitioner
withdrew his motion to dismiss for further
review of the State’s new documentation. With
these calculations we find forty-five (45) days
remaining in the 180 day time period.
¶20 Accordingly, Petitioner’s motion for suspension of the Ten-Day Rule requirement is
GRANTED. Petitioner’s application for an
extraordinary writ is DENIED. Under the IAD
the trial court now has forty-five days remaining in which to commence trial. The Stay
imposed by this Court on August 23, 2016, is
LIFTED.
¶21 IT IS SO ORDERED.
¶22 WITNESS OUR HANDS AND THE
SEAL OF THIS COURT this 22nd day of
December, 2016.
CLANCY SMITH,
Presiding Judge
GARY L. LUMPKIN,
Vice Presiding Judge
ARLENE JOHNSON, Judge
DAVID B. LEWIS, Judge
ROBERT L. HUDSON, Judge
ATTEST:
Michael S. Richie
Clerk
LEWIS, J, CONCURRING IN PART,
DISSENTING IN PART:
¶1 I dissent to the Order’s decision to overrule Ullery v. State, 1999 OK CR 36, 988 P.2d
332. Ullery sets forth the three methods of time
computation under the Interstate Agreement
on Detainers Act (IAD). When adopting the
IAD, the legislature was silent regarding the
issues discussed in Ullery; therefore, this Court
was required to adopt a method of time computation. Since our decision in UIlery, the legislature has not acted in contravention of our
decision. I would find this inaction to be an
affirmation of our interpretation of the statute.1
The Oklahoma Bar Journal
11
¶2 The time computations found in Matthews
v. Kentucky, 168 S.W.3d 14 (Ky. 2005), is just a
different interpretation of the same statute in
that jurisdiction and is not binding on this
Court. In fact, we addressed, in Ullery, the
same three time computations as discussed in
Matthews. Neither New York v. Hill, 528 U.S. 110,
120 S.Ct. 659, 145 L.Ed.2d 560 (2000), nor Matthews address new legal issues regarding time
computation. The remaining historical justifications for overruling Ullery are neither persuasive, nor based on any factual or legal
authority.
¶7 For these reasons, I concur in the denial of
Petitioner’s application for an extraordinary
writ, but dissent to overruling Ullery.
¶3 Despite my disagreement with the Order’s
treatment of Ullery, I find that Petitioner’s
extraordinary writ must be denied. Time constraints of the IAD can be waived. Skinner v.
State, 2009 OK CR 19, ¶ 34, 210 P.3d 840, 853.
When the 120 day time limit required by Ullery
is applied to Petitioner’s case, it becomes clear
that Petitioner waived his rights under the IAD.2
DARREN LEE WELLS, Appellant, v. THE
STATE OF OKLAHOMA, Appellee.
¶4 Petitioner waived the protections of the
IAD at the conclusion of the preliminary hearing on July 11, 2016. Petitioner and his attorney
stood silent when his District Court Arraignment was set for August 8, 2016, a date beyond
the 120 day limit of July 23, 2016. The IAD does
not create a constitutional right, thus a knowing and voluntary waiver of the protections of
the IAD is not necessary. Yellen v. Cooper, 828
F.2d 1471, 1474 (10th Cir. 1987).
¶5 Petitioner’s inaction when the arraignment was set on a date inconsistent with the
IAD’s time limits, constituted a waiver of the
protection of the IAD. Petitioner’s explicit waiver was unnecessary in this case. The Court in
Hill, while not discussing time computation,
held that “given the harsh remedy of dismissal
with prejudice . . . willingly accepting treatment inconsistent the IAD’s time limits” constitutes waiver. See Hill, 528 U.S. 110 at 118, 120
S.Ct. at 666, 145 L.Ed.2d 560 (2000). The waiver
analysis in Hill is applicable in this case.
¶6 Petitioner’s last minute motion for speedy
trial, filed two days prior to the expiration date
does not nullify his waiver. Once Petitioner
waived the protections of the IAD, he could no
longer reassert the protections, as his waiver
constitutes a bar to asserting the IAD protections at a later date. Because of Petitioner’s
waiver, the State is no longer under a time
limitation for the prosecution of this case, other
than constitutional and/or other statutory
speedy trial concerns.
12
1. The general rule is that “when a construction has been placed
upon a statute by the highest court having jurisdiction to fix its meaning, such construction becomes a part of the statute as if it had been
written into it originally.” Berryman v. State, 1955 OK CR 51, 283 P.2d
558, 566 (Opinion on rehearing); See Olstad v. Microsoft, 700 N.W.2d 139,
145 (Wis. 2005). While legislative inaction is not necessarily legislative
affirmation, we can assume that the legislature is aware of this Court’s
interpretation of a statute, and that its subsequent inaction may be
interpreted as a validation of that interpretation. See Bob Jones Univ. v.
United States, 461 U.S. 574, 600, 103 S.Ct. 2017, 76 L.Ed.2d 157 (1983).
2. Petitioner does not identify a date on which his trial was to have
commenced under the IAD.
2016 OK CR 28
No. RE-2015-0575. December 20, 2016
SUMMARY OPINION
LUMPKIN, VICE PRESIDING JUDGE:
¶1 Appellant, Darren Lee Wells, entered a
plea of no contest on August 7, 2013, in Oklahoma County District Court Case No. CF-20121322, to one count, Count 3, of Making Lewd or
Indecent Proposal to Minor Under Sixteen in
violation of 21 O.S.2011, § 1123(A).1 He was
sentenced to a term of five years with all but
the first thirty days suspended, with rules and
conditions of probation.
¶2 The State filed an application to revoke
Appellant’s suspended sentence on November
18, 2014, alleging Appellant: (1) committed the
new crime of Count 1 – Assault and Battery
with a Dangerous Weapon and Count 2 – Malicious Destruction of Property, as alleged in
Logan County District Court Case No. CF-2014268; (2) failed to attend sex offender treatment;
and (3) failed to take polygraph exam as
required by the Sex Offender Registration Act.
The State filed an amended application to
revoke on January 21, 2015, alleging, in addition to the above, that Appellant: (4) committed the new crime of Count 1 – Sex Offender
Residing with Minor Child, as alleged in Garfield County District Court Case No. CF-201512. A Second Amended Application to Revoke
was filed on February 27, 2015, alleging Appellant also: (5) committed the new crime of
Count 1 – Operating a Motor Vehicle While
Under the Influence of Alcohol, as alleged in
Logan County District Court Case No.
CM-2015-89.
¶3 Following a revocation hearing held on
March 3, 2015, April 14, 2015, April 27, 2015,
and concluded on June 12, 2015, before the
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Honorable Glenn M. Jones, District Judge,
Appellant’s suspended sentence was revoked
in full, four years and 335 days, with credit for
time served. The trial court also ordered three
years post-imprisonment community supervision. Appellant appeals from the revocation of
his suspended sentence raising the sole proposition of error that the trial court lacked authority to impose post-imprisonment supervision
at the time of the revocation of Appellant’s
suspended sentence.
¶4 Appellant states that when he was sentenced on August 7, 2013, no period of postimprisonment supervision was ordered under
22 O.S.2011, § 991a(A)(1)(f) or 22 O.S.Supp.2012,
§ 991a-21(A). He argues that while the District
Court had the power and authority to revoke
all or part of the original sentence up until the
expiration of its original term, a suspended
sentence may not be lengthened beyond the
term of the original sentence by intervening
revocation orders occurring within the original
term of the sentence. The State improvidently
concedes error. See Turvey v. State, 1952 OK CR
98, 247 P.2d 304, 307 (disregarding State’s concession of error because result would neither
be proper nor in accordance with ends of justice). We find that the District Court did not
abuse its discretion when it ordered postimprisonment supervision at the revocation
hearing. Tilden v. State, 2013 OK CR 10, ¶ 10,
306 P.3d 554, 557 (“The standard of review
applied to revocation proceedings is abuse of
discretion.”).
¶5 The Oklahoma Legislature has passed
numerous provisions regarding post-imprisonment supervision.2 These competing provisions have created confusion in the district
courts and to some degree in this Court. We
must reconcile the competing statutes and give
clear rules for the district courts to apply.
¶6 The rules of statutory construction are
well settled. State ex rel. Mashburn v. Stice, 2012
OK CR 14, ¶ 11, 288 P.3d 247, 250.
Statutes are to be construed to determine
the intent of the Legislature, reconciling
provisions, rendering them consistent and
giving intelligent effect to each. Lozoya v.
State, 1996 OK CR 55, ¶ 17, 932 P.2d 22, 28;
State v. Ramsey, 1993 OK CR 54, ¶ 7, 868
P.2d 709, 711. It is also well established that
statutes are to be construed according to
the plain and ordinary meaning of their
language. Wallace v. State, 1997 OK CR 18, ¶
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4, 935 P.2d 366, 369-370; Virgin v. State, 1990
OK CR 27, ¶ 7, 792 P.2d 1186, 1188.
Id., quoting State v. Young, 1999 OK CR 14, ¶ 27,
989 P.2d 949, 955. Each part of the various statutes must be given intelligent effect. Id. This
Court avoids any statutory construction which
would render any part of a statute superfluous
or useless. Id.; State v. Doak, 2007 OK CR 3, ¶ 17,
154 P.3d 84, 87. In the case of an irreconcilable
conflict in statutory language, this Court recognizes that the later-enacted legislation controls
over the earlier-enacted provisions. Doak, 2007
OK CR 3, ¶ 18, 154 P.3d at 87.
¶7 A brief history of the statutory enactments
regarding post-imprisonment supervision
illustrates the problems that the district courts
are encountering. In 2006, the Legislature first
authorized post-imprisonment supervision
when it amended Section 991a(A) of Title 22,
the statute providing for the suspension of a
sentence in whole or in part. 2006 OKLA. SESS.
LAWS CH. 294, § 1. Section 991a(A)(1)(f) reads:
A. Except as otherwise provided in the
Elderly and Incapacitated Victim’s Protection Program, when a defendant is convicted of a crime and no death sentence is
imposed, the court shall either:
1. Suspend the execution of sentence in
whole or in part, with or without probation.
The court, in addition, may order the convicted defendant at the time of sentencing or
at any time during the suspended sentence
to do one or more of the following:
***
f. to confinement as provided by law
together with a term of post-imprisonment
community supervision for not less than
three (3) years of the total term allowed by
law for imprisonment, with or without restitution; provided, however, the authority
of this provision is limited to Section 843.5
of Title 21 of the Oklahoma Statutes when
the offense involved sexual abuse or sexual
exploitation; Sections 681, 741 and 843.1 of
Title 21 of the Oklahoma Statutes when the
offense involved sexual abuse or sexual
exploitation; and Sections 865 et seq., 885,
886, 888, 891, 1021, 1021.2, 1021.3, 1040.13a,
1087, 1088, 1111.1, 1115 and 1123 of Title 21
of the Oklahoma Statutes,
22 O.S.2011, § 991a(A)(1)(F). This statutory
enactment authorized the district court to order
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13
the convicted defendant at the time of sentencing or at any time during the suspended sentence to confinement as provided by law
together with a term of post-imprisonment
community supervision for not less than three
years of the total term allowed by law for
imprisonment when the defendant had been
convicted of one of the enumerated offenses
involving sexual exploitation or sexual abuse.
The amended language only authorized postimprisonment supervision after confinement
during a suspended sentence.
¶8 Thereafter, the Legislature amended the
punishment provisions for the enumerated
offenses involving sexual exploitation or sexual abuse and required that, except for persons
sentenced to life or life without parole, any
person sentenced to imprisonment for two (2)
years or more for a violation of one of the enumerated statutory provisions serve a term of
post-imprisonment supervision pursuant to
Section 991a(A)(1)(F). 2007 OKLA. SESS. LAWS
CH. 261, §§ 1-18. The Legislature amended the
range of punishment for each of the sex offenses to include:
Except for persons sentenced to life or life
without parole, any person sentenced to
imprisonment for two (2) years or more for
a violation [ ] of this section and the offense
involved sexual assault, shall be required
to serve a term of post-imprisonment
supervision pursuant to subparagraph f of
paragraph 1 of subsection A of Section 991a
of Title 22 of the Oklahoma Statutes under
conditions determined by the Department
of Corrections. The jury shall be advised
that the mandatory post-imprisonment
supervision shall be in addition to the
actual imprisonment.
Id.3
¶9 Only the sex offenses listed within Section
991a(A)(1)(F) required post-imprisonment
supervision until the Oklahoma Legislature in
2012 enacted Section 991a-21 of Title 22. 2012
OKLA. SESS. LAWS CH. 228, § 4. This new section of law stated:
A. For persons convicted and sentenced on
or after November 1, 2012, the court shall
include in the sentence of any person who
is convicted of a felony and sentenced to a
term of confinement with the Department
of Corrections, as provided in Section 991a
of Title 22 of the Oklahoma Statutes or any
other provision of the Oklahoma Statutes, a
14
term of post-imprisonment supervision.
The post-imprisonment supervision shall
be for a period of not less than nine (9)
months nor more than one (1) year following confinement of the person and shall be
served under conditions prescribed by the
Department of Corrections. In no event
shall the post-imprisonment supervision
be a reason to reduce the term of confinement for a person.
B. The court shall not include a term of
post-imprisonment supervision for any
person who has been sentenced to life
without parole.
C. Should the offender fail to comply with
the terms of post-imprisonment supervision, the offender may be sanctioned to
serve a term of confinement of six (6)
months in an intermediate revocation facility.
D. Nothing in this section shall prevent the
state from revoking, in whole or in part, the
post-imprisonment supervision, probation
or parole of a person for committing any
misdemeanor or felony while under such
supervision, probation or parole.
22 O.S.Supp.2012, § 991a-21.
¶10 The plain language of Section 991a-21
requires the district court to include in the sentence for any person convicted of a felony and
sentenced to a term of confinement, with the
exception of life without parole, a period of
post-imprisonment supervision of not less than
nine (9) months nor more than one (1) year.
This requirement applies to any felony offense
other than the sex offenses enumerated within
Section 991a(A)(1)(f).
¶11 In Friday v. State, 2016 OK CR 16, __ P.3d
__, this Court interpreted the plain language of
Section 991a-21. Focusing on the language
“convicted” and “sentenced,” this Court determined that Section 991a-21 does not authorize
post-imprisonment supervision to be imposed
at the time an order revoking a suspended sentence is entered. Id., 2016 OK CR 16, ¶¶ 4-5.
¶12 We note that Friday did not involve one
of the sex offenses set out in Section 991a(A)(1)
(F). Instead, the appellant in Friday had entered
a plea of guilty to Uttering a Forged Instrument. Friday, 2016 OK CR 16, ¶ 1. Thus, the
plain language of Section 991a(A)(1)(F) did not
apply.
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Vol. 88— No. 1 — 1/14/2017
¶13 In the present case, we are presented
with different circumstances than in Friday.
Appellant entered a no contest plea to Making
Lewd or Indecent Proposal to Minor Under
Sixteen in violation of 21 O.S.2011, § 1123(A).
This statutory provision is one of the sex
offenses for which Section 991a(A)(1)(F)
requires post imprisonment supervision. As
the explicit language of Section 991a(A)(1)(F)
authorizes the district court to “order the convicted defendant at the time of sentencing or at
any time during the suspended sentence” to
“confinement . . . with a term of post-imprisonment community supervision,” the district
court was authorized to order post-imprisonment supervision in this case.
¶14 Underlying this Court’s opinion in Friday is the double jeopardy prohibition against
multiple punishments for the same offense. See
Hemphill v. State, 1998 OK CR 7, ¶ 6, 954 P.2d
148, 150 (“Our state’s sentencing statutes contemplate that when a defendant is sentenced
he receives only one sentence, not multiple
ones.”); Degraffenreid v. State, 1979 OK CR 88, ¶
13, 599 P.2d 1107, 1110 (“There is one judgment
of guilt and one sentence, and they have
already been imposed.”); Marutzky v. State,
1973 OK CR 398, ¶ 6, 514 P.2d 430, 431-32)
(finding defendant not punished twice for
same offense where original punishment
imposed). It is clear from the plain language of
Section 991a(A)(1)(F) and Section 1123 that the
Legislature intended that every person convicted and sentenced to imprisonment for two (2)
years or more serve a term of post-imprisonment
supervision when released from incarceration or
imprisonment. Appellant acknowledged within
his Plea form that he was required to serve a
term of post-imprisonment supervision for any
term of imprisonment of two (2) years or more.
The trial court only ordered a single term of
post-imprisonment supervision during the proceedings. Consequently, Appellant is not being
twice punished for the same offense.
¶15 Although the Legislature has not made
provision for the imposition of a term of postimprisonment supervision following the revocation of a suspended sentence in general felony
cases, it has required service of such a term in
sex offense cases in which the defendant is
imprisoned for two (2) years or more. Since the
trial court was authorized to order post-imprisonment supervision in the present case when it
revoked the balance of Appellant’s suspended
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sentence, we find that the trial court did not
abuse its discretion. No relief is required.
DECISION
¶16 The revocation of Appellant’s suspended
sentence in Oklahoma County District Court
Case No. CF-2012-1322 is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of
Criminal Appeals, Title 22, Ch.18, App. (2016),
the MANDATE is ORDERED issued upon the
filing of this decision.
REVOCATION APPEAL FROM THE
DISTRICT COURT OF OKLAHOMA
COUNTY, THE HONORABLE GLENN M.
JONES, DISTRICT JUDGE
APPEARANCES AT TRIAL
Ed Blau, Attorney at Law, 101 Park Avenue,
Suite 600, Oklahoma City, Oklahoma 73102,
Counsel for Defendant
Michele McElwee, Assistant District Attorney,
505 County Office Bldg., 320 Robert S. kerr
Ave., Oklahoma City, Oklahoma 73102, Counsel for the State
APPEARANCES ON APPEAL
Kimberly D. Heinze, Appellate Defense Counsel, P.O. Box 926, Norman, Oklahoma 73070,
Counsel for Appellant
E. Scott Pruitt, Attorney General of Oklahoma,
Jennifer B. Welch, Assistant Attorney General,
313 N.E. 21st Street, Oklahoma City, Oklahoma
73105, Counsel for the State
OPINION BY: LUMPKIN V.P.J.
SMITH, P.J.: Concur
JOHNSON, J.: Concur
LEWIS, J.: Concur in Results
HUDSON, J.: Concur
1. Two counts of Making a Lewd or Indecent Proposal to a Minor
Under Sixteen, Counts 1 and 2, were dismissed.
2. We note that the district courts have long been authorized to
impose a term of “probation” when the court suspends a sentence in
whole or in part. 22 O.S.Supp.2014, § 991a(A)(1). Historically, a term of
“probation” as set out in Section 991a(E) acted as a form of postimprisonment supervision. This mechanism remains available to the
district courts.
3. The enactment amended Sections 681(B), 741, 843.1(D), 867(C),
886, 888(A), 891, 1021(D), 1021.2(A), 1021.3(A), 1040.13a(D), 1087(C)
and 1088(C) of Title 21, and Section 7115(E) of Title 10.
4. Friday also involved imposition of a “second” term of postimprisonment supervision. Friday v. State, 2016 OK CR 16, ¶ 3, __ P.3d
__. The district court in Friday imposed confinement and a term of
post-imprisonment supervision at the time of sentencing and then
imposed a second term of post-imprisonment supervision at the revocation hearing. Id., 2016 OK CR 16, ¶¶ 1, 3. This aspect of the opinion
has been woefully overlooked.
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15
2016 OK CR 29
CHARLIE TUCKER, Appellant, vs. THE
STATE OF OKLAHOMA, Appellee.
No. F-2015-472. December 21, 2016
OPINION
SMITH, PRESIDING JUDGE:
¶1 Charlie Tucker was tried by jury and convicted of Count I, Assault and Battery with a
Deadly Weapon in violation of 21 O.S.2011, §
652, and Count III, Obstructing an Officer (misdemeanor) in violation of 21 O.S.2011, § 540, all
after former conviction of a felony, in the District Court of Cleveland County, Case No.
CF-2012-2223.1 In accordance with the jury’s
recommendation the Honorable Tracy Schumacher sentenced Tucker to ten (10) years
imprisonment (Count I) and thirty (30) days in
jail (Count III), to run concurrently. Tucker must
serve 85% of his sentence on Count I before
being eligible for parole consideration. Tucker
appeals from these convictions and sentences.
¶2 Tucker raises three propositions of error
in support of his appeal:
I.The State improperly used a stale prior
conviction to enhance Mr. Tucker’s sentence.
II.Mr. Tucker failed to receive the effective
assistance of counsel regarding his status
as a habitual offender, resulting in the
State’s improper use of a prior conviction
to enhance his sentence.
III.
Because the trial court’s instructions
improperly allowed a conviction for
assault and battery with a deadly weapon without requiring proof of an intent to
kill, the judgment against Mr. Tucker
must be modified.
¶3 After thorough consideration of the entire
record before us, including the original record,
transcripts, exhibits and briefs, we affirm Tucker’s conviction. We remand the case for resentencing on Count I.
¶4 We find in Proposition I that there is a
high probability that the prior conviction used
to enhance Tucker’s sentence was stale. The
enhanced sentence was based on one prior
conviction. The range of punishment for his
crime, as charged, was ten years to life imprisonment. 21 O.S.2011, § 652(C); 21 O.S.2011, §
51.1(A)(1). There is no minimum sentence for
16
assault and battery with a deadly weapon as a
first offense. 21 O.S.2011, § 652(C). A sentence
may be enhanced with a prior conviction if the
current offense is committed within ten years
following completion of execution of the previous sentence. 21 O.S.2011, § 51.1(A). That tenyear period may be prolonged if, between
completion of the sentence on the former conviction and the current offense, a person was
convicted of a misdemeanor involving moral
turpitude. 21 O.S.2011, § 51.2. Tucker received
the minimum sentence for assault and battery
with a deadly weapon with one prior conviction, ten years.
¶5 The State’s argument turns on (a) whether
ten years had passed between Tucker’s last
conviction and his current conviction and (b)
whether Tucker’s 2010 misdemeanor conviction for domestic abuse satisfies Oklahoma’s
statute providing for sentence enhancement
when a conviction involves a crime of moral
turpitude.
¶6 Tucker admitted that he had a prior Mississippi conviction for accessory after the fact
to armed robbery. Tucker originally pled in
Warren County Circuit Court, Mississippi, in
1999, on a non-adjudication order; had he successfully completed 36 months of supervised
probation, the case would have been dismissed. However, Tucker was not successful,
his non-adjudicated sentence was revoked,
and on January 12, 2001, he received a 5-year
sentence in Mississippi, suspended upon successful completion of the Restitution Center.
The record supports Tucker’s claim that this
sentence was completed and discharged on
January 29, 2002, more than ten years before
the current offense. The burden is on the defendant to show that the sentence of a former
conviction has been satisfied for more than ten
years and thus cannot support a sentence
enhancement under § 51.2. Goodwin v. State,
1986 OK CR 180, ¶ 8, 730 P.2d 1202, 1204.
Tucker bases this claim on two Mississippi
documents. The first, from the Mississippi
Department of Corrections, is titled “Petition
for Termination of Probation,” and filed in
Warren County, Mississippi on January 29th,
2002. This document notes that Tucker was
placed in the Restitution Center, was released
from that Center on March 30, 2001 and returned
to probation, and had no further probation violations. The document asks the Warren County
Circuit Court to discharge Tucker’s probation.
The second, from the Warren County Circuit
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Court, is titled “Discharge Order” and states that
Tucker’s probation is terminated.
¶7 The Mississippi statutory chapter dealing
with probation and parole, in a subsequent section, states that after discharge from probation
by the court of original jurisdiction, the probationer may have civil rights restored by the
Governor. Miss Code Ann. § 47-7-41. This certainly suggests that the Discharge Order operated as a completion of execution of Tucker’s
sentence in that case.2 The State notes that the
Mississippi Supreme Court has held that, while
statute limits supervised probation to five
years, a suspended sentence may include “‘unsupervised’ post-release supervision.” Johnson
v. State, 925 So.2d 86, 102 (¶ 29) (Miss. 2006).
However, Johnson does not, as the State suggests, allow this Court to assume that the
remainder of Tucker’s sentence continued as
unsupervised probation until the five years
ran. In Johnson, the defendant had eight years
suspended, with five of those years on supervised probation. As the Johnson Court explained,
Mississippi statutes provide for suspended
sentence, supervised probation (not to exceed
five years), and post-release supervision; that
opinion was the Court’s attempt to clarify the
relationship among those statutory provisions.
Id. at 91 (¶ 6). That Court held that a trial court
may both suspend a sentence in whole or in
part, and sentence a defendant to a period of
post-release supervision; if the latter extends
past the five-year statutory maximum, any
time over that period becomes “unsupervised
post-release supervision”. Id. at 102 (¶ 29). The
opinion does not say that an order which does
not mention post-release supervision at all can
be said to include post-release supervision.
Here, the Circuit Court order states that Tucker’s probation is terminated. That is all it says.
Reading that order in conjunction with Mississippi § 47-7-41, and the discussion in Johnson,
this Court cannot conclude with any certainty
that Tucker’s five-year suspended sentence did
not completely discharge on January 29, 2002.
¶8 If Tucker’s Mississippi sentence completely discharged in January 2002, it is outside the
ten-year limit for enhancement, should not
have been used, and Tucker should not have
been convicted after a former conviction. However, the State argues that the ten-year period
was prolonged by Tucker’s conviction for misdemeanor domestic abuse in Cleveland County, in case number CM-2010-2139. 21 O.S.2011,
§ 51.2. The State asserts that domestic abuse is
Vol. 88— No. 1 — 1/14/2017
a crime of moral turpitude. Tucker argues that
domestic abuse is merely a kind of assault and
battery, which is not a crime of moral turpitude. Winfield v. State, 1920 OK CR 148, 18 Okl.
Cr. 257, 268, 191 P. 609, 612. The State contends
that Winfield is limited to the context of impeachment, and claims that this holding does
not apply to sentence enhancement under §
51.2. This alleged distinction is not borne out
by the State’s cited cases.
¶9 The law does not support the State’s claim
that domestic violence is a crime of moral turpitude. This Court, citing the Oklahoma Supreme Court, accepted a definition of moral
turpitude as “anything done contrary to justice, honesty, modesty, or good morals.” Saulmon v. State, 1980 OK CR 58, ¶ 12, 614 P.2d 83,
86. Saulmon appears to limit this broad language in the initial sentence by describing
crimes of moral turpitude as including embezzlement, forgery, robbery, swindling, and “all
crimes of which fraud is an element.” Id. The
State relies on Saulmon’s initial broad language,
as well as that in Bunn v. State, 1977 OK CR 52,
¶ 6, 561 P.2d 969, 971. There, we held that driving under the influence was a crime of moral
turpitude because it is inherently dangerous to
the public, and “shows a lack of personal integrity and a lack of concern for and respect of the
person of others and their property.” Id. ¶ 7,
561 P.2d at 972. Neither the crime in Saulmon
nor that in Bunn is comparable to domestic
assault and battery. However, those cases
define “moral turpitude” similarly to what the
State urges us to adopt here. That definition is
arguably broad enough to encompass virtually
any crime — surely not what the Legislature
intended by using the phrase in the very specific statutory context of § 51.2.
¶10 The State also relies on an unpublished
summary opinion finding that Malicious Intimidation because of Race (a crime very different from domestic assault and battery) is a
crime of moral turpitude in the § 51.2 context.
Silmon v. State, F-2011-894, slip op. at 2 (Okl.Cr.
Jan. 4, 2013) (not for publication). In Silmon this
Court cited the Saulmon definition of moral
turpitude as something contrary to justice and
good morals, showing a lack of personal integrity, and a lack of concern and respect for others (omitting the specific language about
fraud, etc.). Id. at 2-3. Silmon relied, in its turn,
on Bunn and other impeachment cases involving moral turpitude.3 One of these is Price v.
State, a published case in which we applied an
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17
Eighth Circuit definition which restricted
moral turpitude to “the gravest offenses —
felonies, infamous crimes, those that are malum
in se,” including crimes of theft, and thus show
a defendant is inherently of depraved mind
and unworthy of belief. Price v. State, 1976 OK
CR 22, ¶ 12, 546 P.2d 632, 638. Malum in se
refers to crimes which are wrongs in themselves, inherently immoral, such as murder,
arson or rape. Black’s Law Dictionary 978 (8th
Ed. 2004). The Price definition comes much
closer to the spirit of traditional usage. “Moral
turpitude” usually invokes crimes involving
lying or deceit (fraud, theft, embezzlement,
bribery), or actual moral offenses (incest, murder). Black’s defines “moral turpitude” as conduct contrary to justice, honesty, or morality; it
encompasses departures from ordinary standards of honesty, good morals, justice or ethics,
as to shock the moral sense of the community;
it includes conduct that is base, vile, or
depraved. Black’s Law Dictionary 1031 (8th Ed.
2004). More concisely, Black’s free online service
defines the term as one “applied to an offense
or a crime that is illegal but also shows a person’s baseness and depravity.” Black’s Free
Online Legal Dictionary 2nd Ed., thelawdiction
ary.org/letter/m/page/87/.
¶11 Misdemeanor domestic assault and battery would not fit within traditional definitions
or the Price standard. Essentially, domestic
assault and battery is a crime of violence
against the person — like assault and battery. It
is difficult to characterize domestic violence as
a malum in se crime, or one recognized as inherently evil and immoral, given that for centuries
it was not recognized as a crime at all, and only
recently has our Legislature granted it felony
status. In fact, the only compelling (implied)
reason the State offers to make domestic violence a crime of moral turpitude is to remove
any question, in this case, as to the validity of
Tucker’s enhanced conviction. That is simply
not a good enough reason to expand the definition of “moral turpitude” and to separate
domestic assault and battery from the wellsettled law that assault and battery is not a
crime of moral turpitude.4 We find that domestic assault and battery is not a crime of moral
turpitude, and ten years had elapsed between
Tucker’s Mississippi conviction and the current charges. If Tucker’s prior conviction was
stale, the ten-year period was not prolonged by
Tucker’s subsequent misdemeanor conviction.
We reject the State’s argument that any irregularity in the timing of the Mississippi convic18
tion was cured by Tucker’s subsequent conviction. Furthermore, we must review Tucker’s
claims of ineffective assistance in Proposition II
with the understanding that, if the Mississippi
conviction were stale, the error would have
significant consequences for Tucker’s sentence.
Given the ambiguity surrounding the Mississippi conviction, we are unable to further
resolve the issue raised in Proposition I.
¶12 We find in Proposition II that trial counsel was ineffective for failing to discover and
demonstrate the possibility that Tucker’s prior
conviction from Mississippi was too old to use
for sentencing enhancement. Tucker was represented at trial by Mr. Finlay (first chair) and
Ms. Gundy (second chair). Gundy had represented Tucker since preliminary hearing, while
Finlay was called in to conduct the trial. Tucker
must show that counsel’s performance was
deficient, and that the deficient performance
was prejudicial. Miller v. State, 2013 OK CR 11,
¶ 145, 313 P.3d 934, 982; Wiggins v. Smith, 539
U.S. 510, 521, 123 S.Ct. 2527, 2535, 156 L.Ed.2d
471 (2003); Strickland v. Washington, 466 U.S.
668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674
(1984). Counsel’s acts or omissions must have
been so serious as to deprive Tucker of a fair
trial with reliable results. Harrington v. Richter,
562 U.S. 86, 104, 131 S.Ct. 770, 787-88, 178 L.
Ed.2d 624 (2011). Tucker must show he was
prejudiced by counsel’s acts or omissions. Williams v. Taylor, 529 U.S. 362, 394, 120 S.Ct. 1495,
1513-14, 146 L.Ed.2d 389 (2000); Strickland, 466
U.S. at 693, 104 S.Ct. at 2067. Where a defendant fails to show prejudice, we will dispose of
a claim of ineffective assistance on that ground.
Marshall v. State, 2010 OK CR 8, ¶ 61, 232 P.3d
467, 481. At sentencing, the trial court stated its
belief that, but for his prior conviction, jurors
“clearly” would have given Tucker a sentence
of less than ten years. As it was, jurors acquitted Tucker of one felony and gave him the
minimum sentence on the other.
¶13 In connection with this claim of ineffective assistance of counsel, we remanded the
case for an evidentiary hearing on July 5, 2016.
Rule 3.11(B), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2016). We
directed the trial court to answer four questions:
(1) did trial counsel investigate the circumstances surrounding Tucker’s prior conviction,
including his sentence; (2) was trial counsel
aware that there might be some discrepancy
regarding when Tucker’s sentence for his prior
Mississippi conviction was completed; (3) was
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Vol. 88— No. 1 — 1/14/2017
trial counsel aware of these documents, through
either Tucker, counsel’s investigation, or discovery; (4) if trial counsel was aware of the
documents did counsel make a strategic decision not to use them and raise the issue of
completion of the prior sentence. The hearing
was held on August 3, 2016. Each party submitted proposed findings and conclusions to
the trial court, and the trial court completed its
findings of fact and conclusions of law on September 6, 2016. Both parties subsequently filed
supplemental briefs based on those findings
and conclusions.
¶14 The trial court first made findings regarding the four questions above. The trial court
found (a) that trial counsel attempted to investigate the circumstances surrounding Tucker’s
Mississippi conviction; (b) that trial counsel
were not aware of any information calling into
question the date Tucker’s sentence on the Mississippi conviction was completed; (c) that trial
counsel were not aware of the documents
showing that Tucker’s conviction might be
stale; and (d) that, had Finlay and Gundy
known Tucker’s conviction was potentially
stale, they would have used that knowledge to
prohibit his sentence enhancement, and would
have no strategic reason not to do so.
¶15 The trial court also reached several conclusions of law, making no findings or conclusions as to whether trial counsel’s conduct was
or was not ineffective. (Conclusions 1-3). The
court noted that to be sentenced as a second
and subsequent offender, if ten years have
passed since completion of the sentence for a
prior felony, the defendant must meanwhile
have been convicted of a felony or misdemeanor involving moral turpitude (21 O.S.2011, §
51.2); the court further found the State had not
presented evidence of such an intervening conviction, specifically finding that domestic
assault and battery was not a crime of moral
turpitude. (Conclusion 4). The trial court found
that, if the Mississippi sentence was completed
more than ten years before December 7, 2012, it
could not be used to enhance Tucker’s sentence, and that “completion” occurred when
the Department of Corrections relinquishes
control of and unconditionally releases a defendant. (Conclusion 5).
¶16 In Conclusion 6, the trial court discussed
the effect of the uncertainty surrounding the
Mississippi conviction. The court first noted
that, where the prosecution seeks to enhance
punishment for a second or subsequent offense,
Vol. 88— No. 1 — 1/14/2017
the State must prove the prior conviction
beyond a reasonable doubt. The court noted:
The state presented no evidence that Mr.
Tucker had any further liability or obligation in the criminal case other than by the
documents entered into evidence by the
State. The documents provided by the Defense on appeal do raise a question which
cannot be answered by either party at this
time.
The trial court noted that, had the issue of the
time discrepancy been raised at trial, it could
have been resolved and, if the conviction was
stale, the trial court would have instructed on a
different range of punishment.
¶17 In Conclusion 7, the trial court returned
to the burden of proof. The court found that,
while the defendant has the burden to provide
some evidence that a prior conviction is stale,
the State still has the burden to prove it is not
stale.
¶18 Finally, in Conclusion 8, the trial court
found that Tucker satisfied his burden to provide “evidence which arguably indicates that
his Mississippi conviction” was stale, as the
discharge order from Mississippi “plainly
states ‘the probation of the aforesaid is hereby
terminated.’” The court concluded, “Based on
the evidence before the court, the Court would
not have permitted the trial to proceed to a
second stage without the issue being resolved.”
¶19 This Court has before it the entire record
in the Mississippi case, including the document
titled “Discharge Order” and dated January 29,
2002. The most reasonable interpretation of the
Mississippi statutes and case law taken together,
and compared with corresponding Oklahoma
law, strongly suggest that Tucker completed his
sentence on January 29, 2002. Tucker has no
intervening conviction for a felony or misdemeanor involving moral turpitude. The record
strongly suggests that Tucker’s sentence was
improperly enhanced with a stale conviction.
The trial court clearly was troubled by this possibility, concluding that, had the discharge
document been produced at trial, it would not
have allowed the case to proceed until the
issue was resolved. The trial court also found
that, had it been determined at trial that Tucker’s Mississippi sentence was complete on
January 29, 2002, the court would have instructed on a different range of punishment.
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19
¶20 The trial court found that counsel tried
to investigate the Mississippi case, that counsel
did not know about the discharge documents,
and that counsel had no strategic reason not to
use them had they been available. The trial
court also set forth the Strickland standard for
ineffective assistance. The trial court did not
find that trial counsel’s investigation was adequate, and did not find that counsel was not
ineffective. Instead, the court emphasized the
troubling ambiguity surrounding the prior
conviction and said that it would not have
allowed the case to proceed until that issue was
resolved. Trial counsel’s duty is to conduct a
thorough investigation of a defendant’s background, as it is relevant to the issues in the
trial. Wiggins, 539 U.S. at 521-22, 123 S.Ct. at
2535-36; Williams, 529 U.S. at 396, 120 S.Ct. at
1515. Where the issue is capital mitigation,
counsel must exercise reasonable professional
judgment and diligently investigate a defendant’s criminal, psychological and personal
history. Rompilla v. Beard, 545 U.S. 374, 383-84,
125 S.Ct. 2456, 2463-64, 162 L.Ed.2d 360 (2005);
Wiggins, 539 U.S. at 522-23, 123 S.Ct. at 2535-36.
¶21 Where the issue, as here, is the possibility of a conviction too stale to use to enhance a
sentence, trial counsel should diligently attempt to discover all the details of that conviction. Cf. Rompilla, 545 U.S. at 383-84, 125 S.Ct. at
2464 (important to examine capital defendant’s
prior conviction file to counter allegations of
history of use or threat of violence). On this
record, counsel failed to make that showing.
Finlay himself did nothing. Gundy said she
telephoned two or possibly three different Mississippi officials. Gundy said she asked them
for documents but didn’t know whether she
received any; other testimony established that
she had not. Neither Gundy nor Finlay offered
any reason why she would fail to follow up on
such a simple, and essential, request.5 Based on
their testimony, Finlay and Gundy would have
used the Discharge Order if they had it. This
appellate record shows that consulting the full
Mississippi record would have raised a serious
issue, and that the trial court would have
required that issue to be resolved before instructing jurors on the range of punishment. Trial
counsel here were deficient — Gundy for failing
to follow through, and Finlay for leaving the
whole question to Gundy without considering
the possibility that the conviction was stale.
¶22 The record shows a strong possibility
that defense counsel’s omissions resulted in
20
prejudice to Tucker. If Tucker’s prior conviction was stale, his jury was instructed on the
wrong range of punishment. Jurors gave Tucker the minimum sentence on Count I. At sentencing, the trial court stated, “But for your
prior, I don’t know what they [jurors] would
have given you. Clearly, it would have been
less than the 10.” This may have referred back
to an argument defense counsel raised at sentencing. Counsel stated, “Another thing I
would like to point out is the jury did come
back with a question asking, Could they give
him less than 10 on that Count I, which obviously the Court could not answer, nor could he
be given that.” No jury notes were preserved in
the record and there is no transcript record of
any notes received from jurors during deliberations. However, the trial court’s phrasing suggests that this note was actually submitted
(though apparently neither answered nor preserved). On this record, we cannot conclude
that, if Tucker did not have a prior conviction,
a properly instructed jury would have recommended a sentence of ten years.
¶23 This is a frustrating case. Defense counsel’s failure to follow up on Tucker’s Mississippi
conviction has left the substantive sentencing
issue in limbo. The most this Court can conclude
with certainty is that there is a strong possibility
Tucker was improperly charged, that his jury
was improperly instructed, and that his sentence would have been different but for counsel’s omissions. We can certainly find counsel
ineffective for failing to investigate the circumstances surrounding his Mississippi conviction; such investigation could have an-swered
and/or avoided these questions. The trial
court’s Findings and Conclusions support this
conclusion. Where an evidentiary hearing
reveals deficient performance which prejudices
the defendant, relief is appropriate. Levering v.
State, 2013 OK CR 19, ¶ 12, 315 P.3d 392, 396 (on
remand for evidentiary hearing, trial court
found performance was deficient and counsel’s failure prejudiced appellant); cf. United
States v. Kissick, 69 F.3d 1048, 1056-57 (10th Cir.
1995), abrogated on other grounds by United States
v. Horey, 333 F.3d 1185 (10th Cir. 2003) (failure
to investigate circumstances of prior conviction
deficient and prejudicial).
¶24 Tucker’s trial counsel were ineffective
for failing to investigate the circumstances surrounding his prior Mississippi conviction. It is
highly likely that conviction was stale and
should not have been used to enhance his sen-
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Vol. 88— No. 1 — 1/14/2017
tence. If so, his jury was improperly instructed
on the minimum sentence. The record indicates
jurors would have considered a sentence of less
than ten years had that option been available.
Thanks to counsels’ deficient performance, neither this Court nor the trial court can find with
certainty that Tucker’s conviction was stale.
However, counsel were ineffective, and there is
a strong possibility that ineffective assistance
resulted in a miscarriage of justice. We grant
Tucker’s request to remand Count I for resentencing. There is no doubt of Tucker’s guilt. On
remand, this Court expects the parties to
address whether the Mississippi conviction
may be used to enhance Tucker’s sentence; the
trial court made it clear in its Conclusions that
it would not allow sentencing to proceed without a resolution of the issue. Proposition II is
granted, and the case is remanded for resentencing on Count I.
¶25 We find in Proposition III that the trial
court did not abuse its discretion in instructing
the jury. Tucker claims that the trial court
should have sua sponte instructed jurors that
assault and battery with a deadly weapon
requires use of deadly force or intent to kill.
Instructions are within the discretion of the
trial court. Cipriano v. State, 2001 OK CR 25, ¶
14, 32 P.3d 869, 873. An abuse of discretion is
any unreasonable or arbitrary action made
without proper consideration of the relevant
facts and law, also described as a clearly erroneous conclusion and judgment, clearly against
the logic and effect of the facts. Neloms v. State,
2012 OK CR 7, ¶ 35, 274 P.3d 161, 170. We
review this claim for plain error. Day v. State,
2013 OK CR 8, ¶ 14, 303 P.3d 291, 298. Plain
error is an actual error, that is plain or obvious,
and that affects a defendant’s substantial rights,
affecting the outcome of the trial. Barnard v.
State, 2012 OK CR 15, ¶ 13, 290 P.3d 759, 764.
There is no error here. Intent to kill is not an
element of assault and battery with a deadly
weapon. Goree v. State, 2007 OK CR 21, ¶ 3, 163
P.3d 583, 584; 21 O.S.2011, § 652(C). It would
be error to instruct jurors otherwise. Goree, ¶ 5,
163 P.3d at 584-85. We decline Tucker’s invitation to revisit this conclusion. Proposition III
is denied.
DECISION
Ch.18, App. (2016), the MANDATE is ORDERED issued upon the delivery and filing of
this decision.
AN APPEAL FROM THE DISTRICT COURT
OF CLEVELAND COUNTY
THE HONORABLE TRACY SCHUMACHER,
DISTRICT JUDGE
ATTORNEYS AT TRIAL
Kevin Finlay, Kristi M. Gundy, 303 South
Peters, Norman, OK 73069, Counsel for Defendant
Zachary Simmons, Dane Towery, Assistant District Attorneys, 201 South Jones, Norman, OK
73069, Counsel for the State
ATTORNEYS ON APPEAL
Cindy Brown Danner, P.O. Box 926, Norman,
OK 73070, Counsel for Appellant
E. Scott Pruitt, Attorney General of Oklahoma,
Donald D. Self, Assistant Attorney General, 313
NE 21st Street, Oklahoma City, OK 73105,
Counsel for Appellee
OPINION BY: SMITH, P.J.
LUMPKIN, V.P.J.: CONCUR
JOHNSON, J.: CONCUR
LEWIS, J.: CONCUR
HUDSON, J.: CONCUR
1. Tucker was acquitted of Count II, Assault and Battery with a
Deadly Weapon. Tucker had originally entered a blind plea to the
charges, but was allowed to withdraw that plea at the sentencing hearing. Subsequently the case was remanded for further preliminary
hearing and a second page, alleging a prior conviction, was added to
the Information.
2. Oklahoma law has a similar provision; we have held a sentence
is completed when the Department of Corrections determines the
sentence has been satisfied and the defendant is unconditionally
released, rather than on the calendar date representing the maximum
time a defendant might be held in custody on the sentence. Nipps v.
State, 1978 OK CR 30, ¶ 6, 576 P.2d 310, 312.
3. Although Silmon cites Collins v. State, 2009 OK CR 32, 223 P.3d
1014, as defining moral turpitude, that case actually does not expressly
or implicitly define that term. Rather, the opinion refers to dishonesty
or false statement only as that language appears in 12 O.S.2011, §
2609(A)(2), allowing impeachment of a witness. Collins, ¶ 23, 223 P.3d
at 1019.
4. In its findings and conclusions, the trial court explicitly found
that domestic assault and battery is not a crime of moral turpitude.
Findings & Conclusions at 4 n.2, O.R. 357. This finding is supported by
the law.
5. The record is clear that defense counsel was capable of getting
actual information from another Mississippi county. The PSI also
showed another Mississippi case, from Bolton County in 2006, with no
disposition information available. At sentencing, Gundy told the trial
court that she had talked to the Bolton County prosecutor and mayor’s
office, and determined that case had been dismissed. This makes counsel’s failure to follow up in Warren County even less understandable.
¶26 The Judgment of the District Court of
Cleveland County is AFFIRMED. The Sentence on Count I is REMANDED for RESENTENCING. Pursuant to Rule 3.15, Rules of the
Oklahoma Court of Criminal Appeals, Title 22,
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21
2016 OK CR 30
HILLARD A. FULGHAM, II, Appellant, v.
STATE OF OKLAHOMA, Appellee.
No. F-2015-455. December 22, 2016
OPINION
HUDSON, JUDGE:
¶1 Appellant Hillard A. Fulgham, II was
tried by a jury in the District Court of Tulsa
County, Case No. CF-2013-2986, and convicted
of two counts of Murder in the First Degree in
violation of 21 O.S.Supp.2004, § 701.7.1 The jury
recommended Fulgham be sentenced to life
imprisonment without the possibility of parole
on both counts. The Honorable Doug Drummond, District Judge, sentenced Fulgham in
accordance with the jury’s verdicts and ordered
the sentences be run consecutively. From these
Judgments and Sentences, Fulgham now appeals. We AFFIRM.
BACKGROUND
¶2 On January 4, 2006, police found Dorothy
Lindley and Linda Wright stabbed to death in
Ms. Lindley’s apartment at the Warwick Apartments in Tulsa. Ms. Lindley was found lying
on her bed while Ms. Wright was found lying
on the bedroom floor. Evidence at the scene
indicated that the struggle between the victims
and their assailant was limited to this bedroom. Ms. Lindley’s apartment was located on
the second floor. Ms. Lindley’s bedroom window was broken and the screen had been
pulled out. Blood was found on the bottom
ledge of the windowsill. Blood was also found
in the kitchen on the tile floor and counter-top;
in the bathroom on the floor; and on a toilet
paper roll.
¶3 While the police investigated various
potential suspects, their investigation turned
up nothing concrete and the case grew cold
until a hit through the Combined DNA Indexing System (CODIS) — a national DNA database — on May 1, 2009. A DNA match was
found between Appellant’s DNA profile and
the DNA obtained from the blood on the windowsill and the toilet paper roll. Appellant’s
DNA profile had been entered into the database because he was serving a seven (7) year
sentence in Mississippi. Thereafter, police
secured a search warrant to obtain a DNA
sample from Appellant. The search warrant
was executed at the Mississippi prison in
which Appellant was being housed. DNA test22
ing confirmed Appellant’s presence at the
crime scene.
¶4 Additional facts relating to the murders
need not be presented herein as Appellant does
not allege any procedural or evidentiary issues
occurred during the trial, nor does he challenge
the sufficiency of the evidence supporting the
jury’s guilty verdicts.
VIOLATION OF INTERSTATE
AGREEMENT ON DETAINER’S ACT
CLAIM
¶5 In his first proposition of error, Appellant
contends his rights pursuant to the Interstate
Agreement on Detainers (IAD) were violated
when the State failed to bring him to trial
within the 120 day timeframe mandated by
Article IV(c) of the IAD. 22 O.S.2011, § 1347.
¶6 The IAD is a compact among 48 states, the
District of Columbia, Puerto Rico, the United
States Virgin Islands, and the United States.
Carchman v. Nash, 473 U.S. 716, 719, 105 S. Ct.
3401, 3403, 87 L. Ed. 2d 516 (1985). It is a “congressionally sanctioned interstate compact”
within the Compact Clause of the United States
Constitution, Art. I, § 10, cl. 3. Id. Hence, the
IAD is a federal law subject to federal construction. Id.; New York v. Hill, 528 U.S. 110, 111, 120
S. Ct. 659, 662, 145 L. Ed. 2d 560 (2000). Oklahoma codified the IAD in 1977 in Title 22, Section 1345 et seq.
¶7 The IAD provides cooperative procedures
for transfers of prisoners between the federal
and state jurisdictions that have adopted the
interstate compact. The purpose of the IAD is
“to encourage the expeditious and orderly disposition of [outstanding] charges and determination of the proper status of any and all
detainers based on untried indictments, informations or complaints.” 22 O.S.2011, § 1347
Art. I; Carchman, 473 U.S. at 720, 105 S. Ct. at
3403; Bowie v. State, 1991 OK CR 78, ¶ 14, 816
P.2d 1143, 1147. Moreover, as recognized by the
Supreme Court:
Adoption of the [IAD] was motivated in
part by a practice of filing detainers based
on untried criminal charges that had little
basis. These detainers often would be withdrawn shortly before the prisoner was
released. Even though unsubstantiated, the
detainers would have a detrimental effect
on the prisoner’s treatment. Article III
enables a prisoner to require the State lodging the detainer either to drop the charge
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Vol. 88— No. 1 — 1/14/2017
the basis of which the detainer has been
lodged is not brought to trial within the
period provided in Article III or Article IV
hereof, the appropriate court of the jurisdiction where the indictment, information
or complaint has been pending shall enter
an order dismissing the same with prejudice, and any detainer based thereon shall
cease to be of any force or effect.
and resulting detainer or to bring the prisoner to trial. In this way, the prisoner can
clear his record of detainers based on
unsubstantiated charges.
Carchman, 473 U.S. at 729–30, 105 S. Ct. at
3408–09 (internal citations omitted). Thus,
included within the purpose of the IAD is the
goal of preventing frivolous detainers through
the speedy disposition of detainers to ensure
that those filed for specious reasons do not linger. Id.; see also Gilbreath v. State, 1982 OK CR
147, ¶ 4, 651 P.2d 699, 700 (“Oklahoma enacted
the IAD in 1977, to lessen the abuses arising
out of the use of detainers.”); Ward v. Com., 62
S.W.3d 399, 402 (Ky. App. 2001) (IAD was
enacted to eliminate potential abuses of the
detainer system).
¶8 In the present case, Appellant was transferred from Mississippi to Oklahoma at the
State’s request pursuant to Articles IV and V of
the IAD. The fact Appellant had been transferred to Oklahoma pursuant to the IAD was
never acknowledged or raised until Appellant’s formal sentencing hearing — well after the
completion of his jury trial. And, even then, the
issue was raised by the trial court — not Appellant. At the start of Appellant’s formal sentencing hearing on April 13, 2015, the trial court
advised he had discovered a Request for Temporary Custody filed pursuant to the IAD in
the record.2 The trial court directed the parties
to “look into this” and specifically research the
issue of waiver. The hearing was then continued until April 23, 2015. At the April 23rd sentencing hearing, the trial court heard argument
on the issue and ultimately determined Appellant had “effectively waived” the statutory
rights provided by the IAD. We agree.
Id. (emphasis added).
¶10 The mandatory 120 day time limit can be
extended by the proper tolling of the statute if
the State can demonstrate “good cause” for
such tolling. Bowie, 1991 OK CR 78, ¶ 14, 816
P.2d at 1147. Here, approximately 565 days
passed from the time Appellant arrived in
Tulsa on September 18, 2013, and ultimately
went to trial on April 6, 2015. Notably, there is
no evidence in the record before us that the
State deliberately or negligently attempted to
thwart Appellant’s IAD rights. While the
record clearly demonstrates some of the delays
were for good cause, a proper record establishing good cause was not made in relation to a
great many of the continuances. Nonetheless,
this Court need not determine if the mandated
120 days was properly tolled as we find Appellant waived any rights granted to him under
the IAD when he proceeded to trial.
¶11 In New York v. Hill, the United States
Supreme Court held that a defendant can
implicitly waive the IAD’s time constraints by
accepting treatment inconsistent with the
IAD’s time limits. 528 U.S. at 118, 120 S. Ct. at
666. In rejecting the argument that waiver is
possible only by affirmative conduct, the Hill
Court reasoned
such an approach would enable defendants to escape justice by willingly accepting treatment inconsistent with the IAD’s
time limits, and then recanting later on.
Nothing in the IAD requires or even suggests a distinction between waiver proposed and waiver agreed to. In light of its
potential for abuse — and given the harsh
remedy of dismissal with prejudice — we
decline to adopt it.
¶9 Article IV provides in pertinent part:
(c) In respect of any proceeding made possible by this article, trial shall be commenced within one hundred twenty (120)
days of the arrival of the prisoner in the
receiving state, but for good cause shown
in open court, the prisoner or his counsel
being present, the court having jurisdiction
of the matter may grant any necessary or
reasonable continuance.
22 O.S.2011, § 1347. Article V(c) provides:
If the appropriate authority shall refuse or
fail to accept temporary custody of said
person, or in the event that an action on the
indictment, information or complaint on
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Id.
¶12 In the 565 days leading up to his trial,
Appellant appeared before the trial court on
numerous occasions without ever raising the
issue of noncompliance with the IAD. By failing to raise the issue prior to the commence-
The Oklahoma Bar Journal
23
ment of his trial, Appellant acquiesced to treatment inconsistent with the IAD’s time limits.
Hill, 528 U.S. at 118, 120 S. Ct. at 666; see also
Rackley v. State, 1991 OK CR 70, ¶ 10, 814 P.2d
1048, 1051 (defendant waived any rights granted to him under the IAD when he proceeded to
trial on the charges without challenging his
transfer from federal to state custody); Ward, 62
S.W.3d at 403 (defendant waived his right to
complain about IAD violation by acquiescing
to be tried outside the required time period
and failing to raise the issue of alleged noncompliance prior to the expiration of the 120
day time limit).3
Maxwell v. State, 1989 OK CR 22, ¶ 7, 775 P.2d
818, 820. “Unless the defendant makes both
showings, it cannot be said that the conviction
. . . resulted from a breakdown in the adversary
process that renders the result unreliable.”
Malone v. State, 2013 OK CR 1, ¶ 14, 293 P.3d 198,
206 (internal quotations omitted). Moreover,
“[w]hen a claim of ineffectiveness of counsel can
be disposed of on the ground of lack of prejudice, that course should be followed.” Malone,
2013 OK CR 1, ¶ 16, 293 P.3d at 207. In the present case, even assuming arguendo counsel’s
performance was deficient, Appellant’s claim
fails to show Strickland prejudice.
¶13 Moreover, while the trial court inquired
into the implications of the IAD on Appellant’s
conviction, the issue was no longer pertinent as
the protections provided to Appellant through
the IAD had already terminated. The safeguards provided by the IAD extend to the commencement of trial, but not beyond. See 22
O.S.2011, § 1347 Art. V(c) (indictment, information or complaint must be “brought to trial”
within the period provided by Article IV);
Bowie, 1991 OK CR 78, ¶ 14, 816 P.2d at 1147
(“The statute does not require that a final verdict be had within [the 120 day] limit, only that
the trial commence.”); United States v. Coffman,
905 F.2d 330, 332 (10th Cir. 1990) (the term
“trial” as used in the IAD reflects a decision to
limit the scope of the IAD and does not include
sentencing). Thus, Appellant waived any rights
granted to him under the IAD — along with
his ability to subsequently complain such
rights had been violated — when he proceeded
to trial.
¶16 To demonstrate prejudice a defendant
must show there is a reasonable probability
that, but for counsel’s unprofessional errors,
the outcome of the trial would have been different. Daniels v. State, 2016 OK CR 2, ¶ 9, 369
P.3d 381, 384. “A reasonable probability is a
probability sufficient to undermine confidence
in the outcome.” Id. (quoting Strickland, 466 U.S.
at 694, 104 S. Ct. at 2068). “The likelihood of a
different result must be substantial, not just conceivable.” Malone, 2013 OK CR 1, ¶ 16, 293 P.3d
at 207 (quoting Richter, 131 S. Ct. at 792).
¶14 Appellant’s first proposition of error is
denied.
INEFFECTIVE ASSISTANCE
OF COUNSEL CLAIM
¶15 In his second and final proposition of
error, Appellant argues his trial counsel was
ineffective for failing to raise the issue of
Appellant’s IAD rights prior to trial. To prevail
on an ineffective assistance of counsel claim, a
defendant bears the burden of showing both
that counsel’s performance was deficient and
that the deficient performance prejudiced his
defense. Strickland v. Washington, 466 U.S. 668,
687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674
(1984). See also Harrington v. Richter, 562 U.S. 86,
104, 131 S. Ct. 770, 787, 178 L. Ed. 2d 624 (2011)
(summarizing Strickland two-part test); Tate v.
State, 2013 OK CR 18, ¶ 38, 313 P.3d 274, 284;
24
¶17 Appellant essentially asks this Court to
assume that had his trial counsel asserted
Appellant’s IAD rights prior to trial, his case
would have been dismissed with prejudice.
Again, this issue was raised for the first time
post-verdict by the trial court. Thus, the record
on appeal was not developed in a manner to
support or refute an IAD claim. We cannot
blindly make the leap necessary to find prejudice in this case based on speculation alone. See
Gonzalez v. Knowles, 515 F.3d 1006, 1015-16 (9th
Cir. 2008) (speculation is insufficient to establish Strickland prejudice). Notably, during the
course of Appellant’s case, Appellant was
appointed three separate attorneys. We can
only speculate what would have occurred if at
some point one of these three attorneys had
raised the issue. Moreover, had Appellant
flagged this issue some time prior to trial, it is
not unrealistic to assume the trial court could
have complied with the IAD’s requirements.
Nor is it unrealistic to assume that the trial
court would have advanced the date of the trial
or otherwise ensured a proper record was
made establishing good cause for delay, either
of which would have satisfied Article IV(c). See
Reed v. Farley, 512 U.S. 339, 350-51, 114 S. Ct.
2291, 2298, 129 L. Ed. 2d 277 (1994).
The Oklahoma Bar Journal
Vol. 88— No. 1 — 1/14/2017
¶18 The history of this case cannot be rewritten. Given the harsh remedy of dismissal with
prejudice, this Court cannot find Strickland
prejudice resulted through assumptions and
speculation. Appellant has failed to present any
evidence demonstrating the reasonable probability of a different result in the proceedings.
Appellant’s ineffective assistance of counsel
claim is therefore conclusory and speculative. To
find Strickland prejudice under the circumstances would “enable defendants to escape justice by
willingly accepting treatment inconsistent with
the IAD’s time limits.” Hill, 528 U.S. at 118, 120
S. Ct. at 666.
¶19 Additionally, a significant purpose of the
IAD is to prevent frivolous detainers as well as
prejudice to a defendant’s ability to present a
defense at trial caused by delay. See Carchman,
473 U.S. at 729–30, 105 S. Ct. at 3408–09; Gilbreath, 1982 OK CR 147, ¶ 4, 651 P.2d at 700. The
legitimacy of the State’s detainer was validated
by Appellant’s conviction. This leaves the issue
of whether Appellant’s ability to present a
defense was prejudiced or impaired by delay.
No such allegation or showing is made here.
¶20 Appellant has thus failed to “affirmatively
prove prejudice.” Strickland, 466 U.S. at 693,
104 S. Ct. at 2067. He is therefore not entitled to
relief and his final proposition of error is
denied.
DECISION
¶21 The Judgments and Sentences of the district court are AFFIRMED. Pursuant to Rule
3.15, Rules of the Oklahoma Court of Criminal
Appeals, Title 22, Ch. 18, App. (2016), the MANDATE is ORDERED issued upon delivery and
filing of this decision.
Vol. 88— No. 1 — 1/14/2017
AN APPEAL FROM THE DISTRICT COURT
OF TULSA COUNTY
THE HONORABLE DOUG DRUMMOND,
DISTRICT JUDGE
APPEARANCES AT TRIAL
Kyle H.B. Killam, 2017 South Elm Place, Ste
108, Broken Arrow, OK 74012, Counsel for
Defendant
Erik Grayless, Amanda Self, Assistant District
Attorneys, District Attorney’s Office, 500 South
Denver, Ste 900, Tulsa, OK 74103, Counsel for
the State
APPEARANCES ON APPEAL
Wayna Tyner, Oklahoma Indigent Defense,
P.O. Box 926, Norman, OK 73070, Counsel for
Appellant
E. Scott Pruitt, Oklahoma Attorney General,
Jennifer B. Miller, Assistant Attorney General,
313 N.E. 21st Street, Oklahoma City, OK 73105,
Counsel for Appellee
OPINION BY: HUDSON, J.
SMITH, P.J.: CONCUR
LUMPKIN, V.P.J.: CONCUR
JOHNSON, J.: CONCUR IN RESULTS
LEWIS, J.: CONCUR IN RESULTS
1. Jacqueline Octavia Smith was charged in the same Information
with Appellant. Smith, who had been in a romantic relationship with
Appellant at the time of the murders, was charged with two counts of
Accessory to Murder in the First Degree. Smith ultimately waived her
right to a preliminary hearing and testified on behalf of the State.
2. The request was file stamped on July 30, 2013.
3.We recognize in Ullery v. State the Court all but said the issue was
waived on similar facts, but ultimately bypassed the issue in favor of
resolving the accompanying ineffective assistance of counsel claim. 1999
OK CR 36, ¶ 7, 988 P.2d 332, 339-40. However, we find the reasoning set
forth in Hill — decided shortly after this Court’s decision in Ullery — to
be persuasive. By finding Appellant waived his IAD rights this Court is
not evading the substantive issue presented herein as Ullery implied a
finding of waiver would do, but is calling a spade a spade.
The Oklahoma Bar Journal
25
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Court of Civil Appeals Opinions
2016 OK CIV APP 74
IN RE THE MARRIAGE OF: PATRICIA
JOHNSON, Petitioner/Appellee, vs. LEE
JOHNSON, Respondent/Appellant.
Case No. 112,766. February 12, 2016
APPEAL FROM THE DISTRICT COURT OF
COMANCHE COUNTY, OKLAHOMA
HONORABLE KEITH B. AYCOCK,
TRIAL JUDGE
AFFIRMED IN PART AND VACATED
IN PART
Barry K. Roberts, Norman, Oklahoma and
Fletcher D. Handley, Jr., THE HANDLEY LAW
CENTER, El Reno, Oklahoma, for Petitioner/
Appellee
Virginia Henson, PETERSEN, HENSON,
MEADOWS, PECORE & PEOT, P.C., Norman,
Oklahoma, for Respondent/Appellant
DEBORAH B. BARNES, JUDGE:
¶1 This appeal arises from the divorce proceedings of Respondent/Appellant Lee Johnson
(Husband) and Petitioner/Appellee Patricia
Johnson (Wife). Husband appeals the parties’
divorce decree filed in March 2014. Husband’s
primary argument on appeal is that although
the trial court “has jurisdiction of the dissolution
action pursuant to 43 O.S. § 102(B)” — which
provides that “[a]ny person who has been a
resident of any United States army post or military reservation within the State of Oklahoma,
for six (6) months immediately preceding the
filing of the petition, may . . . be sued for
divorce” — the trial court nevertheless lacked
authority to divide Husband’s military retirement. Husband asserts that “military retirement is the separate property of the servicemember by federal law.” Husband further
argues that to the extent a state court may
divide a servicemember’s retirement, it may
do so only if the court has jurisdiction by reason of (1) the servicemember’s residence,
“other than because of military assignment, in
the territorial jurisdiction of the court,” (2) the
servicemember’s domicile in the territorial
jurisdiction of the court, or (3) the servicemember’s consent to the jurisdiction of the court,
citing 10 U.S.C. § 1408 (c)(4). Husband asserts
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that none of the above requirements apply in
this case because Husband is domiciled in the
state of Washington, he is in Oklahoma only
because of military assignment, and he has not
consented to the jurisdiction of the Oklahoma
district court, at least not with regard to his
military retirement. He states that “[i]f Congress had intended to make military retirement
divisible by” any state court with jurisdiction
to enter a divorce, “it would have been simple
for the [federal] statute to have said that.
Instead, the statute distinguishes between residence which is sufficient to grant a divorce and
residence which constitutes domicile.” In other
words, Husband asserts that although the
Oklahoma Legislature, in 43 O.S. § 102(B), has
granted Oklahoma district courts authority
over divorce proceedings involving servicemembers based solely on residency resulting
from military assignment, Congress has specifically limited the authority of state district
courts to divide military pensions. Based on
our review, we vacate that portion of the
decree dividing Husband’s military retirement.
The decree is otherwise affirmed.
BACKGROUND
¶2 The parties were married in 1993 in
Bremerton, Washington. One child was born of
the marriage (in 2006). In June 2011, Wife filed
a petition for dissolution of marriage in the
District Court of Comanche County, Oklahoma. The parties stipulate, however, that the
present divorce action is the third domestic
action between the parties filed in Comanche
County. The first two actions were both filed
by Husband: the first was an action for separate maintenance which was dismissed by the
trial court, and the second was an action for
divorce which resulted in a default divorce
decree. However, the second action was ultimately vacated by the trial court as a result of
insufficient service of process on Wife. After
the second action was vacated, Wife filed the
June 2011 petition initiating the divorce proceedings at issue.
¶3 In July 2011, Husband filed a special
appearance and motion to dismiss. Husband
asserted, among other things, that the court
has no jurisdiction to divide his military retirement because he is not domiciled in Oklahoma
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27
but is only in Oklahoma by reason of his military assignment to Fort Sill. He stated he has
no intention of remaining in Oklahoma when
his assignment ends.
¶4 The trial court denied Husband’s motion
and trial was held on June 27, 2013, after which
the trial court issued the divorce decree, filed
on March 26, 2014, dividing the marital property of the parties, including Husband’s military retirement.1 The trial court granted a
divorce on the grounds of incompatibility, and
ordered Husband to pay Wife child support in
the amount of $1,401.09 per month from July
2013 until January 2014, and $1,200.03 per
month thereafter. The trial court also divided
various items of personal property between the
parties, and ordered Husband to pay Wife alimony in lieu of property division in the amount
of $8,682.47. Regarding Husband’s military
retirement, the trial court found it “has jurisdiction to enter an order dividing the military
retirement of [Husband] because of [Husband’s] domicile in the State of Oklahoma and
for reason that he previously filed a petition for
separate maintenance and a petition for divorce
in this County.” The trial court awarded Wife
50% of Husband’s military retirement accrued
during the parties’ sixteen-year marriage.
¶5 From the divorce decree, Husband
appeals.
STANDARD OF REVIEW
¶6 “A divorce suit is one of equitable cognizance in which the trial court has discretionary
power to divide the marital estate.” Colclasure
v. Colclasure, 2012 OK 97, ¶ 16, 295 P.3d 1123
(footnote omitted). The division of property
acquired during the marriage by the joint
industry of the husband and wife must be fair,
just and reasonable. Id.; 43 O.S. Supp. 2012 §
121(B). “However, a marital estate need not
necessarily be equally divided to be an equitable division because the words just and reasonable in § 121 are not synonymous with equal.”
Colclasure, ¶ 16 (footnote omitted). “The trial
court has wide latitude in determining what
part of jointly-acquired property shall be
awarded to each party.” Id. (footnote omitted).
This Court will not disturb the trial court’s
decision regarding property division unless
the trial court abused its discretion or the decision is clearly against the weight of the evidence. Standefer v. Standefer, 2001 OK 37, ¶ 19,
26 P.3d 104. See also Smith v. Villareal, 2012 OK
114, ¶ 7, 298 P.3d 533 (In an action of equitable
28
cognizance there is a presumption in favor of
the trial court’s findings and they will not be
set aside unless the trial court abused its discretion or the finding is clearly against the weight
of the evidence.).
¶7 “Questions of jurisdiction may be raised
at any time, either in the trial court or on
appeal; and even in the absence of an inquiry
by the litigants, [this] court may examine jurisdiction.” Woods Petroleum Corp. v. Sledge, 1981
OK 89, ¶ 1, 632 P.2d 393 (footnote omitted).
Questions concerning a district court’s jurisdictional power invoke the de novo standard of
review. Jackson v. Jackson, 2002 OK 25, ¶ 2, 45
P.3d 418. See Stidham v. Special Indemnity Fund,
2000 OK 33, ¶ 10, 10 P.3d 880 (“Once an issue is
identified as jurisdictional, it calls for a de novo
review.”) (footnote omitted). Statutory interpretation, involving a question of law, also
demands a de novo review standard. Stump v.
Cheek, 2007 OK 97, ¶ 9, 179 P.3d 606.
ANALYSIS
I. Husband’s Military Retirement
¶8 As Husband admits, the trial court had
jurisdiction over these divorce proceedings
under 43 O.S. 2011 § 102(B), which provides as
follows:
Any person who has been a resident of any
United States army post or military reservation within the State of Oklahoma, for six
(6) months immediately preceding the filing
of the petition, may bring action for divorce
or annulment of a marriage or may be sued
for divorce or annulment of a marriage.
¶9 However, as stated by the Supreme Court
of the United States,
[t]he Supremacy Clause provides a clear
rule that federal law “shall be the supreme
Law of the Land; and the Judges in every
State shall be bound thereby, any Thing in
the Constitution or Laws of any State to the
Contrary notwithstanding.” Art. VI, cl. 2.
Under this principle, Congress has the
power to preempt state law. There is no
doubt that Congress may withdraw specified powers from the States by enacting a
statute containing an express preemption
provision.
Arizona v. United States, 132 S. Ct. 2492, 2500-01
(2012) (citations omitted).
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Vol. 88— No. 1 — 1/14/2017
¶10 The federal statute at issue in this case is
the Uniformed Services Former Spouses’ Protection Act, 10 U.S.C. § 1408 (2012) (the Act),
“which authorizes state courts to treat ‘disposable retired or retainer pay’ as community
property” subject to equitable division in a
divorce proceeding. Hayes v. Hayes, 2007 OK
CIV APP 58, ¶ 8, 164 P.3d 1128 (citation omitted).2 However, the Act provides, in pertinent
part, as follows:
A court may not treat the disposable retired
pay of a member in the manner described
in paragraph (1) unless the court has jurisdiction over the member by reason of (A)
his residence, other than because of military
assignment, in the territorial jurisdiction of
the court, (B) his domicile in the territorial
jurisdiction of the court, or (C) his consent
to the jurisdiction of the court.
Section 1408(c)(4) (emphasis added). As stated by the Supreme Court of Colorado:
The question of whether a trial court
acquires jurisdiction over a military member’s military pension is governed not by
principles of state rules of in personam
jurisdiction or procedure, but rather by the
specific terms of the Act that, by virtue of
the Supremacy Clause of the United States
Constitution, in effect preempt state rules
of procedure insofar as jurisdiction to consider this particular asset is concerned.
Matter of Marriage of Booker, 833 P.2d 734, 739
(Colo. 1992) (emphasis added).
¶11 The Supreme Court of Pennsylvania has
stated that, “in keeping with the federal policy
to keep federal intrusion into the area of
domestic relations at a minimum, the Act controls the authority that state family law courts
have over a single item, military retirement
pay.” Wagner v. Wagner, 768 A.2d 1112, 1118 (Pa.
2001).
In the Act, Congress did not purport to
regulate any other of the several issues that
may arise in a military member’s divorce
nor did it purport to speak to a member’s
conduct in litigation with regard to any
issue but the retirement pay. Section 1408(c)
(4) preempts state long-arm statutes only
in connection with a court’s authority to
determine a military member’s retirement
pay, and leaves all other rules by which
state courts acquire personal jurisdiction
Vol. 88— No. 1 — 1/14/2017
over a military member for divorce and
ancillary economic issues untouched.
Wagner, 768 A.2d at 1118.
¶12 In Wagner, the servicemember objected
to the court’s jurisdiction over his military
retirement, and the parties conceded the member was neither a resident nor a domiciliary of
the state (Pennsylvania). Therefore, the issue on
appeal was whether the member had consented
to the jurisdiction of the Pennsylvania court under § 1408(c)(4)(C). The Wagner Court specifically addressed the meaning of § 1408(c)(4)(C)
— i.e., a servicemember’s “consent to the jurisdiction of the court” — explaining as follows:
By its terms, § 1408(c)(4)(C) reflects Congress’ narrow aim. While the reference to
jurisdiction in § 1408(c)(4)(C) is unqualified, § 1408(c)(4)(C) contains a reference to
§ 1408(c)(1)’s specific focus on the retirement pay. Reading the language of § 1408(c)
(4)(C) in context and consistently with the
Act’s scope and object, we believe that
Congress intended for the consent requirement in § 1408(c)(4)(C) to relate, like the
rest of the Act, specifically to a military
member’s pension.
768 A.2d at 1118. The Wagner Court further
stated:
Indeed, to determine otherwise, as did the
Superior Court, would run counter to Congress’ purpose. The right to consent in §
1408(c)(4)(C) carries with it, of course, the
right not to consent. Under the Superior
Court’s construction of the statute, a military member who seeks § 1408(c)(4)(C)’s
protection should withhold his consent to
the trial court’s personal jurisdiction in
general. Taken to its logical conclusion,
however, the Superior Court’s construction
would mean that Congress gave a military
member, who succeeds in withholding his
consent under the statute, the power to
veto the personal jurisdiction a court might
otherwise have to dissolve a marriage or to
determine the various matters, including
the partition of other marital assets, that
divorce actions raise. Given the federal
principle that family law is preeminently a
local matter and the limited focus of the
Act, this simply cannot be the case.
768 A.2d at 1118-19. The Wagner Court concluded, therefore, that “the assertion that has
legal meaning is one (like the assertion made
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29
by [the servicemember]) that withholds consent specifically to the court’s jurisdiction with
respect to the retirement pay.” Id. at 1119. The
Wagner Court stated that
the alternative suggestions the [lower
court] gave to [the] military member to
insure against a finding of consent under
the statute — refuse service or make no
appearance — are ill-advised. They encourage a military member to flout process and
force upon him an unreasonable choice
between participating in and remaining
absent from important judicial proceedings.
Id.
¶13 The Wagner Court “conclude[d] that
under § 1408(c)(4)(C) . . . courts may not exercise the authority they are provided in the Act
to distribute a military member’s retirement
pay in a divorce action, unless the member consents to the court’s jurisdiction over his person
specifically to distribute the retirement pay.” 768
A.2d at 1119 (emphasis added). We find the
Wagner Court’s interpretation of § 1408(c)(4)(C)
to be instructive. See also In re Marriage of Tucker,
226 Cal. ApP.3d 1249, 1259, 277 Cal. Rptr. 403,
409 (Ct. App. 1991) (Pursuant to § 1408(c)(4)
(C), the servicemember must “consent[] to disposition of [the member’s] military retirement”
in order for the trial court to divide the military
retirement benefits.).
¶14 The Wagner Court’s interpretation is also
consistent with the following general guidance
provided by the Supreme Court of the United
States regarding the appropriate interpretation
of the Act:
We realize that reading the [Act] literally
may inflict economic harm on many former spouses. But we decline to misread the
statute in order to reach a sympathetic
result when such a reading requires us to
do violence to the plain language of the
statute and to ignore much of the legislative history. Congress chose the language
that requires us to decide as we do, and
Congress is free to change it.
Mansell v. Mansell, 490 U.S. 581, 594 (1989).3
¶15 Indeed, it appears that conflicting interpretations have only arisen under § 1408(c)(4)
(C) where the military member remained silent
regarding the court’s authority to divide the
military retirement, and only contested that
authority later. That is, there appear
30
to be conflicting interpretations between
states regarding the meaning of “consent”
under subsection (c)(4)(C) of the [Act]. The
disagreement stems from whether implied
consent satisfies the requirements of subsection (c)(4)(C). While some states have
rejected the theory of implied consent, others have held that implied consent satisfies
the requirements of the [Act] or that the
protections of the [Act] may be waived
through state procedural rules. Among
those states accepting the theory of implied
consent, there also appears to be disagreement regarding whether the military
spouse’s participation in the underlying
dissolution proceedings provides a continuing basis to exercise jurisdiction with
respect to post-dissolution proceedings to
divide military retirement pay.
Davis v. Davis, 284 P.3d 23, 26-27 (Ariz. Ct. App.
2012) (emphasis added) (footnote omitted). In
Davis, the court stated that § 1408(c)(4)(C) does
not require express consent, and “a state court
may exercise personal jurisdiction” over a
military member’s retirement when that member “makes a general appearance without expressly contesting personal jurisdiction.” 284 P.3d
at 27 (emphasis added).
¶16 In the present case, however, Husband
promptly and expressly contested personal
jurisdiction of the court with regard to his
retirement pay. By comparison, in Davis:
by the time [the servicemember] first contested personal jurisdiction (and, even
then, only in communications with the
special master), [he] had: (1) made a general appearance; (2) personally and through
counsel appeared at a court hearing; (3)
specifically requested a special master be
appointed to address his retirement pay;
and (4) sought clarification about the special master’s role and payment of the special master’s fees.
284 P.3d at 28.
¶17 The Davis Court concluded that “[b]y
making an appearance, requesting affirmative
relief from the court and taking these other
actions before raising any personal jurisdiction
issue, [the servicemember] consented to Arizona’s jurisdiction.” 284 P.3d at 28 (emphasis
added). However, in the present case, Husband
immediately contested the court’s authority
and jurisdiction to divide the military retirement, and at all stages of the proceeding Hus-
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Vol. 88— No. 1 — 1/14/2017
band renewed his objection to the court’s
authority in this regard.
¶18 Returning to the possible grounds for
exercising jurisdiction over Husband’s military
retirement in the present case, the trial court, in
the divorce decree, found it had authority to
divide Husband’s military retirement for two
reasons: (1) “because of [Husband’s] domicile
in the State of Oklahoma,” and (2) “for reason
that [Husband] previously filed a petition for
separate maintenance and a petition for divorce
in this County,” thereby consenting to the
court’s jurisdiction to divide his military retirement. Given the above discussion, however, it
is clear that the second reason is insufficient.
Although Husband filed the two prior domestic actions in Comanche County, Husband
never specifically consented to the district
court’s jurisdiction with respect to his military
retirement.4 Moreover, as stated above, Husband specifically objected in the present action
to the court’s jurisdiction with regard to his
military retirement, and he did so promptly
and at all stages of the proceedings.
¶19 As to the first reason provided by the
trial court — i.e., that the court has jurisdiction
to divide the military retirement because Husband’s domicile is in Oklahoma — while it is
an otherwise appropriate basis under the Act,
it is not supported by the record. Under the
Act, “[a] person’s domicile is that place where
he has his true, fixed and permanent home and
principal establishment, and to which he has
the intention of returning whenever he is
absent therefrom.” Southern v. Glenn, 677
S.W.2d 576, 583 (Tex. App. 1984) (citation omitted). See also Black’s Law Dictionary (10th ed.
2014) (“The place at which a person has been
physically present and that the person regards
as home; a person’s true, fixed, principal, and
permanent home, to which that person intends
to return and remain even though currently
residing elsewhere.”). As stated above, the parties were married in the state of Washington,
which Husband asserts he has maintained as his
domicile. Moreover, Wife did not contradict
Husband’s position that he is not domiciled in
Oklahoma; rather, she testified that, following
their marriage in Washington, she and Husband
were constantly on the move as a result of Husband’s military assignments. She testified they
moved countless places, thirteen or fourteen times together in sixteen years of marriage. Just about everywhere. We stayed in
the United States most of the time. We
Vol. 88— No. 1 — 1/14/2017
went to Germany and to Italy for a year
and a half each. Then to Brazil for a year.
That is when the separation took place,
while we were stationed in Brazil.
¶20 Husband did not move to Oklahoma
until after the parties’ separation, and he did so
only as a result of military assignment. Husband testified that the period of time from
December 2009 to January 2010 “was the transition from Brazil to Fort Sill,” where Husband
“was assigned to the 31st air defense artillery
and then to the 75th fire brigade.” Husband
testified he was stationed at Fort Sill for only
“[t]wo and a half years” where he was “a resident but not domicile[d].”5 Consequently, we
conclude the trial court’s finding that Husband
was domiciled in Oklahoma for purposes of
exercising jurisdiction over Husband’s military
retirement under the Act is clearly against the
weight of the evidence.
¶21 Accordingly, because the trial court did
not have jurisdiction over Husband’s military
retirement by reason of (1) Husband’s residence, other than because of military assignment,
(2) Husband’s domicile, or (3) Husband’s consent to the jurisdiction of the court to divide his
military retirement, the trial court lacked
authority under § 1408(c)(4) to do so. This portion of the divorce decree is, therefore, vacated.
II. Day Care Expenses
¶22 Husband also contests two of the ancillary economic issues addressed by the trial
court: the alimony in lieu of property division
awarded to Wife (discussed in the following
section), and the day care expenses. In the
divorce decree, Husband was ordered to pay
his “percentage share of the child care [i.e., day
care] expenses” as reflected in the child support guidelines attached to the decree. The
monthly child care (or day care) expenses were
set at $225. Based upon the monthly incomes of
the parties - $11,150.50 per month for Husband,
and $1,256.67 per month for Wife — Husband
was ordered to pay Wife $202.21 of the $225
total in monthly child care expenses.
¶23 Husband does not appear to contest the
monthly amount of child care expenses set by
the trial court; rather, he argues the trial court
“should not have required [him] to share in
day care expense.” Husband admits, however,
that sharing child care expenses is mandatory
where child care is reasonably necessary to
enable either parent to (1) be employed, (2)
seek employment, or (3) attend school or train-
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31
ing to enhance employment income. See 43 O.S.
2011 § 118G. Wife testified, as Husband admits,
that she was studying for a government test in
Brazil; that she was attending classes that met
from 10:00 a.m. until noon and from 2:00 p.m.
to 5:30 p.m.; and that she could not pick up the
child until after 5:30 p.m. “[T]he credibility of
witnesses and the weight and value to be given
to conflicting or inconsistent testimony are
matters primarily for determination by the trial
court.” Catron v. First Nat. Bank & Trust Co. of
Tulsa, 1967 OK 107, ¶ 26, 434 P.2d 263 (citations
omitted). “A trial judge is able to judge the
credibility of the witnesses and the weight of
their testimony better than this Court on appeal
from a trial court’s judgment.” S.W. v. Duncan,
2001 OK 39, ¶ 32, 24 P.3d 846 (citation omitted).
Consequently, we conclude the trial court did
not abuse its discretion in ordering Husband to
pay toward the monthly child care expenses.
III. Alimony in Lieu of Property Division
¶24 Husband’s final argument concerns a
certain mutual fund account (the Allianz
account) that the trial court valued at $9,580.33,
awarded to Husband, and credited in favor of
Wife in its calculation of alimony in lieu of
property division.6 As stated above, the trial
court ultimately ordered Husband to pay Wife
alimony in lieu of property division in the
amount of $8,682.47.
¶25 Husband asserts the trial court made a
mathematical error with regard to the Allianz
account. He asserts that the account was “worth
$18,553.33 as of the date of separation,” and he
further asserts that although this account was
in his possession at the time of separation, he
subsequently paid $8,973 out of the account to
Wife. Husband asserts that, if properly allocated, the trial court “should have valued the
account at $18,553.33 and allocated $8,973.00 to
[Wife] and $9,580.33 to [Husband].”
¶26 In Wife’s Answer Brief, she admits that
the trial court “accepted [Husband’s] evidence
that he had paid a portion of the account to
[Wife],” citing to the following portion of the
trial transcript where the trial court stated as
follows:
I do find that under the [Allianz account]
that there is some dispute about the value
of that fund.
[Wife] has claimed it was worth, upon the
date of separation, [$]18,553.33. [Husband]
has claimed according to Exhibit 42 that he
32
has paid her monies as offsets against that
account totaling, by my arithmetic, $8,973.
He does appear to have some documentation to support that.
So I will make a finding that the value of
that fund was $9,5[8]0.[33].
¶27 Thus, the parties agree, and the trial
court found, that the Allianz account was
worth $18,553.33 at separation, that Husband
transferred $8,973 from that account to Wife,
and that Husband kept the remaining $9,580.33.
It is also clear from Exhibit C, attached to the
divorce decree, where the trial court set forth
its calculation which resulted in the property
division alimony award to Wife, that the trial
court did not offset the value of the Allianz
account kept by Husband by the amount transferred to Wife after separation.
¶28 However, given all the facts and circumstances of this case, we are unable to say the
trial court abused its wide discretion in failing
to offset the Allianz account value by the
amount transferred to Wife after separation.
The total value of the assets divided in arriving
at the alimony in lieu of property division
award is over $300,000. An equitable division
does not mean an equal division, and a modification of this portion of the decree on the grounds
offered by Husband — a modification that
would eviscerate the already relatively modest
alimony in lieu of property division awarded
to Wife — would constitute a failure on the
part of this Court to apply the appropriate
standard of review owed to the trial court’s
determinations. A reduction of the $8,682.47
alimony in lieu of property division award
might be appropriate if this Court were reviewing the property division for perfect mathematical equality. However, because we review
the division to ensure it is equitable — not
necessarily equal — and because we must give
the trial court wide latitude in this regard, we
affirm this portion of the divorce decree.
CONCLUSION
¶29 Based on our review, we vacate that portion of the divorce decree dividing Husband’s
military retirement. The decree is otherwise
affirmed.
¶30 AFFIRMED IN PART AND VACATED
IN PART.
THORNBRUGH, P.J., and RAPP, J., concur.
DEBORAH B. BARNES, JUDGE:
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1. Although the parties had one child, issues concerning the custody of that child had been previously determined — by a court in the
country of Brazil (where Wife lives with her parents and the child) —
and were not the subject of the present divorce action.
2. “Disposable retired or retainer pay is defined as the total monthly retired or retainer pay to which a military member is entitled, less
certain deductions.” Hayes, 2007 OK CIV APP 58, ¶ 8 (internal quotation marks omitted) (citation omitted).
3. We note that the Mansell Court stated that
Sections 1408(c)(2), (c)(3), and (c)(4) impose new substantive
limits on state courts’ power to divide military retirement pay….
[Section] 1408(c)(4) prevents spouses from forum shopping for a
State with favorable divorce laws.
Mansell, 490 U.S. at 590-91 (footnote omitted). “[T]he legislative history
of the Act shows that Congress sought to curtail a spouse’s forum
shopping . . . .” Wagner, 768 A.2d at 1115.
4. In addition, the first action was dismissed, and the second action
resulted in a divorce decree that was vacated. Therefore, there can be
no basis for implied consent based on the prior proceedings which are
now void and, for all practical purposes, nonexistent.
5. Tellingly, not even Wife attempts to argue that Husband was
domiciled in Oklahoma; rather, Wife asserts “[Husband] submitted to
the jurisdiction of the District Court of Comanche County by himself
twice filing actions in that court by which he sought an order of the
court granting him a divorce and dividing marital property.” This
aligns with the second reason offered by the trial court, which we discuss above. See also n.4, supra.
6. “Alimony in lieu of a division of property is not for support,
rather it is an equitable disposition of property.” First Cmty. Bank of
Blanchard v. Hodges, 1995 OK 124, ¶ 11 n.16, 907 P.2d 1047 (citation
omitted).
2016 OK CIV APP 75
STATE OF OKLAHOMA ex rel., JOHN D.
DOAK, INSURANCE COMMISSIONER,
Petitioner/Appellee, vs. Pride National
Insurance Company, Defendant, FIFTH
THIRD BANK, Appellant.
Case No. 113,454. February 12, 2016
APPEAL FROM THE DISTRICT COURT OF
OKLAHOMA COUNTY, OKLAHOMA
HONORABLE BARBARA G. SWINTON,
TRIAL JUDGE
REVERSED AND REMANDED
George M. Emerson, Robert A. Nance, RIGGS,
ABNEY, NEAL, TURPEN, ORBISON & LEWIS,
Oklahoma City, Oklahoma, for Petitioner/
Appellee,
Joel W. Harmon, Melanie Wilson Rughani, Cullen D. Sweeney, CROWE & DUNLEVY, Oklahoma City, Oklahoma, for Appellant.
BRIAN JACK GOREE, JUDGE:
¶1 This appeal arises from the receivership of
an insolvent insurance company, Defendant
Pride National Insurance Company (Pride).
Appellant, Fifth Third Bank (Bank), seeks
review of the trial court’s order ordering Bank
to turn over to the State of Oklahoma, ex rel.
John D. Doak, Insurance Commissioner (Receiver), cash collateral securing Bank’s letter of
credit. We hold that under the Insurance Code,
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Bank was a secured creditor who was entitled
to discharge its claim by resort to the security.
We reverse the trial court’s order and remand
this matter with instructions to grant Bank’s
motion for relief from the stay of litigation to
allow it to satisfy its secured claim from the
cash collateral.
¶2 The underlying facts are not in dispute.
Pride entered into a quota share reinsurance
agreement with CorePointe Insurance Company (CorePointe) in which Pride reinsured 25%
of CorePointe’s risk on certain business and
received 25% of the collected net premiums. In
return, Pride was responsible for paying CorePointe 25% of the net liability of the subject
business.
¶3 Pride secured its obligations under the
agreement by delivering to CorePointe an irrevocable standby letter of credit issued by Bank
in the amount of $250,000. The letter of credit,
issued on October 15, 2012, had an expiration
date of September 14, 2013, but provided that it
would be automatically extended for one year
at a time unless Bank notified CorePointe at
least 60 days prior to the expiration date that it
would not be extended. Pride pledged a first
priority security interest in its savings account
at Bank as collateral for the letter of credit.
¶4 Receiver filed his application and obtained
an order placing Pride into receivership on
March 8, 2013. The order vested Receiver with
all of Pride’s property, authorized him to conduct its business, and directed him to rehabilitate Pride. It appointed Donna Wilson as
Assistant Receiver. Among other things, the
order directed all banks to deliver Pride’s
assets to Receiver. It enjoined all persons from
transferring or concealing Pride’s assets, and
from prosecuting litigation, including making
levy against assets.
¶5 On Receiver’s application, the trial court
entered a liquidation order on July 10, 2013.
The order again included general language
directing banks to deliver Pride’s assets to
Receiver, but it made a specific finding that
Assistant Receiver had taken custody of remaining assets. It cancelled all direct insurance
policies in 31 days, and set a deadline of 180
days for the filing of claims.
¶6 On the same day, Assistant Receiver sent
an email to Bank’s president, attaching the liquidation order and directing Bank to close certain accounts and wire the funds to a specified
account. However, the email also stated, “As
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Account [Number] ... is collateral for the Letter
of Credit, I am not requesting it to be closed at
this time.”
¶7 The deadline for notice of non-renewal of
the letter of credit passed a few days later, on
July 16, 2013. In the absence of any action, the
letter of credit renewed on September 14, 2013
for one more year by its own terms. On September 17, 2013, Assistant Receiver directed
Bank by email, “do not renew Letter of Credit
[Number] and wire the funds held on deposit
against the LOC to [specified account].” A few
days later, Bank advised Assistant Receiver by
email that in order to close the letter of credit,
they would need the original letter of credit
plus a directive from the beneficiary.
¶8 The claims filing deadline, after extensions, passed on April 7, 2014. On July 10, 2014,
CorePointe drew on the letter of credit in the
full amount of $250,000. Bank notified Assistant Receiver of the draw. Bank paid the draw
to CorePointe on July 17, 2014, the same day
that Receiver’s attorney directed Bank not to
pay the draw.
¶9 Bank then moved for relief from the stay
of litigation and the liquidation order to allow
it to offset the cash collateral against the amount
due from Pride under the pledge agreement.
Receiver objected to Bank’s motion and countermoved for an order compelling return of
Pride’s deposit of $250,000. Receiver asserted
that neither CorePointe nor Bank were creditors of Pride on the date of the liquidation
order, and their rights were fixed at that time.
Receiver argued that Bank had violated the
trial court’s order to turn over Pride’s property
to Receiver, and was not entitled to recover for
a claim arising after the liquidation date. Receiver contended that Bank was not a secured
creditor of Pride because it had no claim at all
against Pride on the date of the liquidation
order, and the order itself prevented Bank from
becoming a secured creditor.
¶10 After a hearing, the trial court denied
Bank’s motion and granted Receiver’s motion,
ordering Bank to return to Receiver the $250,000
held in Pride’s account. Bank appeals from this
order. Its contentions are that the trial court
abused its discretion in denying its motion
because (1) it is a perfected, secured creditor
under the provisions of the Oklahoma Insurance
Code relating to the liquidation of insurers, and
(2) its payment of the letter of credit did not violate the trial court’s liquidation order.
34
¶11 The order on appeal refuses to discharge,
vacate, or modify an injunction. 12 O.S. Supp.
2013 §993(A)(2). In reviewing a trial court’s
order granting or denying injunctive relief, we
will examine and weigh the evidence, but we
will not disturb the trial court’s judgment
unless the trial court has abused its discretion
or the decision is clearly against the weight of
the evidence. Sharp v. 251st Street Landfill, Inc.,
1996 OK 109, ¶4, 925 P.2d 546, 549 (overruled
on other grounds by DuLaney v. Oklahoma State
Dept. of Health, 1993 OK 113, ¶1, 868 P.2d 676).
¶12 Oklahoma’s Insurance Code, 36 O.S.
2011 §1914(A), grants authority to the Insurance
Commissioner, as the court-appointed receiver,
to take possession of and administer the assets
of an insolvent insurer. The receiver’s authority
includes conducting the insurer’s business.
§1914(E). As receiver, the Insurance Commissioner is vested by operation of law with the
title to all of the insurer’s property, contracts,
and rights of action, effective on the date of the
court’s rehabilitation or liquidation order.
§1914(B). A receiver holds the property and
funds coming into the receiver’s hands by the
same right and title as the person or entity for
whose property the receiver has been appointed,
subject to the liens, priorities, and equities existing at the time of the court’s order. Flynn v. Lowrance, 1924 OK 1130, ¶4, 236 P. 594, 597. The
rights of the insurer and its creditors are fixed as
of the date the liquidation order is filed. §1925.
¶13 The Insurance Code requires that a
creditor file a proof of claim in order to share in
the distribution of the insurer’s assets. §§
1918(A) and 1930. A secured creditor of an insurer in receivership may either (1) surrender
the security and file a claim as a general creditor, or (2) discharge the claim by resort to the
security. 36 O.S. 2011 §1919(D). The claim of a
secured claimant is allowable only in the
amount of the deficiency between the value of
the claim and the value of the security as of the
date of the liquidation order, unless the claimant surrenders the security and proceeds as an
unsecured creditor. §1929(D). The Insurance
Code does not require that a secured creditor
file a claim if the creditor intends only to proceed against the collateral without seeking
payment of any unsecured portion of the debt.
¶14 These sections of the Insurance Code are
consistent with other procedures to liquidate
assets and satisfy creditors, such as those in
bankruptcy or probate courts. A secured creditor may proceed against the collateral without
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Vol. 88— No. 1 — 1/14/2017
filing a claim against the estate, but must file a
claim in order to participate in the distributions to unsecured creditors. See In re Cardin’s
Estate, 1928 OK 562, ¶2, 270 P. 554, 555 (“[Creditor] did not present his claim to the administratrix within the four months time allowed by
statute, but apparently was satisfied with his
security.”); and In re Pajian, 785 F.3d 1161, 1163
(7th Cir. 2015) (“But while all creditors —
secured and unsecured — must file a proof of
claim in order to receive distributions, a secured
creditor who fails to do so can still enforce its
lien through a foreclosure action, even after the
debtor receives a discharge.”).
¶15 The nature of rights and liabilities under
a letter of credit is well-settled. Under Article 5
of the Uniform Commercial Code, 12A O.S.
2011 §§5-101 to 5-119, a letter of credit involves
three parties: the applicant, the issuer, and the
beneficiary. §5-102(2), (3), and (9). A letter of
credit is an undertaking by an issuer to a beneficiary at the request of the applicant to honor
a documentary presentation by payment or
delivery of an item of value. §5-102(10). A standby letter of credit is credit on which the beneficiary makes demand only if the applicant fails to
pay or perform under a contract. First State Bank
v. Diamond Plastics Corp. (Diamond Plastics), 1995
OK 21, n. 4, 891 P.2d 1262, 1266.
¶16 Letters of credit facilitate commercial
transactions by substituting the issuer’s credit,
preferred by the beneficiary, for that of the
applicant. Id. at ¶12. The issuer’s liability to
pay the beneficiary upon proper demand is
independent of the contract between the applicant and the beneficiary. Id. at ¶¶15-17, 12A
O.S. 2011 §5-108(a) and (f). This rule, known as
the “independence principle,” allows the issuer to act quickly and surely upon presentment
of the draft to determine only whether the
demand meets the requirements of the letter of
credit and not whether the beneficiary is entitled to payment from the applicant. Diamond
Plastics, ¶17.
¶17 The issuer’s obligations under the letter
of credit become enforceable at the time the
issuer transmits the letter of credit to the beneficiary. 12A O.S. 2011 §5-106(a). When the
issuer pays a draft under a letter of credit, it
does so from its own assets and not from the
assets of the applicant. Matter of Compton Corp.,
831 F.2d 586, 589 (5th Cir. 1987). A letter of
credit is irrevocable unless it provides otherwise. §5-106(a). An irrevocable letter of credit
Vol. 88— No. 1 — 1/14/2017
may not be modified or canceled unilaterally
by the issuer or the applicant. Id., cmt. 1.
¶18 A security interest attaches to collateral
when it becomes enforceable against the debtor. 12A O.S. 2011 §1-9-203(a). A security interest
in a deposit account becomes enforceable when
(1) value has been given, (2) the debtor has
rights in the collateral, and (3) the secured
party has control of the deposit account pursuant to the security agreement. §1-9-203(b). A
secured party has control of a deposit account
if the secured party is the bank with which the
deposit account is maintained. §1-9-104(a)(1).
A security interest in a deposit account is perfected by such control beginning when the
secured party obtains control and continuing
only while the secured party retains control.
§1-9-314(b).
¶19 In the present case, Bank acquired a
security interest in the cash collateral no later
than October 15, 2012, the date it gave value by
issuing the irrevocable letter of credit. Bank
perfected the security interest by holding the
cash collateral in a deposit account at Bank
under its control. These rights and obligations
were fixed as of the date of the liquidation
order. Receiver acquired Pride’s interest in the
account subject to Bank’s security interest.
When Assistant Receiver notified Bank of the
liquidation order, she directed Bank to close all
of Pride’s accounts except the cash collateral
account, reflecting an intent to leave in place
the collateral and the letter of credit, which she
was authorized to do. Bank acknowledged the
Assistant Receiver’s authority over Pride’s
assets. The Assistant Receiver could only cancel the letter of credit pursuant to its own
terms. She did not direct Bank to cancel the
letter of credit until after the deadline for notifying the beneficiary, CorePointe, that the letter
of credit would not be extended. The effect of
missing the deadline was that the letter of
credit was extended by its own terms for
another year. When CorePointe submitted a
compliant draw on the letter of credit, Bank
was obligated to pay the draw. Under the
pledge agreement and the Insurance Code, 36
O.S. 2011 §1919(D), Bank was entitled to discharge its claim against Pride by resort to the
security, regardless of whether it had timely
filed a proof of claim. Therefore, the trial court
abused its discretion in denying Bank’s motion
for relief from the stay of litigation and in
requiring Bank to relinquish its perfected security interest.
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35
¶20 The trial court’s order is REVERSED and
this matter is REMANDED with instructions to
grant Bank’s motion for relief from the stay of
litigation to allow it to discharge its claim by
resort to the security.
BUETTNER, V.C.J., P.J., and MITCHELL, J.,
concur.
2016 OK CIV APP 76
JASON OLIVER STAUFF, Plaintiff/
Appellant, vs. ROY AND KIMBERLY
BARTNICK, Individuals, and
PARAMOUNT HOMES REAL ESTATE CO.,
an Oklahoma Corporation, Defendants/
Appellees, and STUART BENGE, d/b/a STU
BENGE PLB. HTG. AC, and GREG PALMER
ELECTRIC, LLC, an Oklahoma Limited
Liability Company, Defendants.
Case No. 113,507. September 2, 2016
APPEAL FROM THE DISTRICT COURT OF
GARFIELD COUNTY, OKLAHOMA
HONORABLE TOM L. NEWBY,
TRIAL JUDGE
REVERSED AND REMANDED
Patrick Lee Neville, Jr., Gungoll, Jackson, Box
& Devoll, P.C., Enid, Oklahoma, for Plaintiff/
Appellant,
Katresa J. Riffel, Jonathan F. Benham, Mitchel,
Gaston, Riffel & Riffel, Enid, Oklahoma, for
Defendants/Appellees Roy and Kimberly
Bartnick,
Diane M. Black, W. Michael Hill, Secrest, Hill,
Butler & Secrest, Tulsa, Oklahoma, for Defendant/Appellee Paramount Homes Real Estate
Co.
Wm. C. Hetherington, Jr., Judge:
¶1 After purchasing a home in Enid, Oklahoma, Plaintiff Jason Stauff (Buyer) filed an
action alleging violations of Oklahoma’s Residential Property Condition Disclosure Act
(Disclosure Act) and negligence against the
sellers, real estate broker, and home inspectors.1 Buyer appeals a single trial court order
granting 1) summary judgment in favor of
Defendants Kimberly Bartnick and her husband, Roy Bartnick (collectively the Bartnicks
or Sellers) and also 2) the motion to dismiss for
failure to state a claim pursuant to 12 O.S. 2011
§2012(B)(6) filed by Defendant Paramount
Homes Real Estate Co. (Broker or Paramount).
Because the evidentiary material presented to
36
the trial court establishes disputed material
facts about the Sellers’ and Broker’s actual
knowledge of the alleged defects in the residence, we reverse the order granting summary
judgment. Concluding Buyer’s petition states a
claim for failure to disclose known defects
against Broker, we reverse the order granting
its dismissal motion. The case is remanded for
further proceedings.
STANDARD OF REVIEW
¶2 This appeal is governed by and follows
the procedure set forth in Oklahoma Supreme
Court Rule 1.36, 12 O.S. 2011, ch. 15, app. 1,
without appellate briefing. “An appellate court
reviews an order granting a motion to dismiss
or a motion for summary judgment de novo,
without deference to the trial court’s conclusion.” International Union of Police Associations v.
City of Lawton, 2009 OK CIV APP 85, ¶ 8, 227
P.3d 164, 166. “We will affirm an order granting
a motion to dismiss only if it appears the plaintiff can prove no set of facts supporting relief.”
Id., (citing Estate of Hicks ex rel. Summers v.
Urban East, Inc., 2004 OK 36, ¶ 5, 92 P.3d 88, 90).
“We will affirm an order granting a motion for
summary judgment only if it appears ‘that
there is no dispute as to any material fact and
that the moving party is entitled to judgment
as a matter of law.’” Id., (quoting Lowery v.
Echostar Satellite Corp., 2007 OK 38, ¶ 11, 160
P.3d 959, 963-964).
FACTS
¶3 Broker is an Oklahoma corporation with
its principal place of business in Enid, Oklahoma. The record establishes Buyer and his
wife were residing in Texas when, as his petition alleges, “on or about July 19, 2012, [he]
retained Paramount as a transaction broker for
assistance in purchasing residential property
located at 501 S. Hayes, Enid, Oklahoma (the
Residence), owned by the Bartnicks.” On July
22, 2012, Buyer and the Bartnicks executed a
contract for sale of the Residence and Buyer
paid $500.00 in earnest money toward the
$155,000.00 total purchase price. Buyer alleges
“the Bartnicks provided to [him] disclosures as
required by the [Disclosure Act, 60 O.S.2011 §
831 et seq.],2 but intentionally failed to identify
numerous defects in the Residence” and that
“Paramount was aware of defects in the Residence which were not disclosed but failed to
inform [him].” For these alleged violations of
the Disclosure Act by Sellers and Paramount,
Buyer seeks actual damages.
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Vol. 88— No. 1 — 1/14/2017
¶4 Buyer also alleges “Paramount negligently performed its duties as transaction broker,
including, but not limited to, failing to disclose
all documents and information necessary to
[Buyer], to provide for all inspections as
requested by [Buyer], and to afford [him] a
walkthrough of the Residence after the Bartnicks had moved out.” He further alleges
“Paramount recommend[ed] that [he] misrepresent the condition of the property to take
advantage of warranty services.”3 Buyer finally
alleges the parties closed on the Residence on
or about August 30, 2013, and after moving
into the Residence on or about September 6,
2013, he “discovered it to be rife with defects,
unsafe, and of significantly reduced value,
including needing repairs expected to cost
greater than $10,000.00.”
¶5 The Bartnicks timely filed an answer, specifically denying Buyer’s material allegations
of their failure to identify known defects in the
Residence.4 Paramount filed a special appearance and joined with it a § 2012(B)(6) motion to
dismiss, attaching Buyer’s petition. Paramount
admits Buyer retained it as a “transactional
broker”5 whose duties are mandated by § 858353(A) of the Oklahoma Real Estate Code, 59
O.S.2011 §§ 858-101 et seq (Code), but argues
his petition alleges only a violation of its Code
duty to “disclose information pertaining to the
property as required by the [Disclosure Act].”
See § 858-353(A)(6) of the Code. Contending §
836 of the Disclosure Act limits a real estate
licensee’s duty to disclose to “defects” about
which a licensee had actual knowledge, Paramount argues Buyer’s own allegations show
“potential defects in the Residence outside of
what was disclosed in [the Bartnicks’] statement and the inspection report was not available prior to closing.” Paramount finally argues
Buyer’s petition must be dismissed for failure
to state a claim upon which relief can be granted because an action can only be brought
against a real estate licensee under the [Disclosure Act] for its failure to disclose defects in the
property actually known “prior to acceptance
of an offer to purchase.”
¶6 Buyer objects to dismissal, arguing the
“express text” of his petition alleges Paramount negligently performed its Code duties
as a transaction broker “to treat all parties with
honesty and exercise reasonable skill and care”
and also failed to disclose known defects. Paramount replied, arguing, inter alia, the Disclosure Act was the exclusive remedy for the
Vol. 88— No. 1 — 1/14/2017
substantive claims made by Buyer, and at a
minimum, his cause of action for professional
negligence must be dismissed. Paramount’s
dismissal motion was apparently initially
denied.6 In a timely filed answer Paramount
specifically denied Buyer’s allegation that it
“was aware of defects in the Residence which
were not disclosed” and “failed to inform
[Buyer].”
¶7 Buyer later moved for partial summary
judgment against Paramount on the cause of
action for professional negligence. Reasserting
Paramount’s duties under the Code and the
Disclosure Act, Buyer attached a Disclosure
Statement the Bartnicks signed in 2013 and
provided to him and other evidentiary material to support his argument that Paramount had
actual knowledge of defects in the Residence
that were not disclosed because of its participation in the sale of the same property in 2010
during which Seller Kimberly Bartnick, formerly Kimberly Stallcup, was the purchaser.
¶8 Paramount responded, admitting the
majority of Buyer’s undisputed facts, including
the 2010 sale of the Residence during which Ms.
Stallcup retained Paramount as a transaction
broker and she received a disclosure statement
from the seller. Paramount argued a different
agent, Ms. Cronkhite, assisted in the 2010 transaction for the Residence, the inspection reports
and invoices were sent to her, those “reports and
invoices became part of the transaction file for
the 2010 sale of [the Residence] between [Ms.]
Shaunessy and [Ms.] Stallcup,” and the repairs
disclosed by the 2010 electrical and plumbing
inspections were completed.
¶9 Paramount also listed undisputed facts
regarding the 2013 transaction for the Residence
during which Amber Sprague was the real estate
licensee. As relevant here, Paramount attached
evidentiary material, including Ms. Sprague’s
affidavit, to support non-liability based on: 1) a
2013 termite inspection report Buyer received
that shows prior infestation and treatment but
recommended no treatment was necessary, 2)
Ms. Sprague’s offer of a pre-closing walkthrough of the Residence to Buyer and his wife
was declined because their dogs were with
them, 3) Paramount’s “confidentiality policy
regarding any transaction in which an agent is
not involved”; and 4) Ms. Sprague “never had
personal knowledge of any defects in the Residence nor had she ever been involved in any
real estate transaction for the Residence.” The
trial court denied Buyer’s motion for partial
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37
summary judgment on Paramount’s liability
for professional negligence.7
¶10 Following Buyer’s deposition, the Bartnicks moved for summary judgment on Buyer’s sole cause of action against them — failure
to disclose known defects in the Residence. The
Bartnicks argued Buyer had no evidence they
had actual knowledge of the alleged undisclosed
defects, attaching their separate affidavits specifically denying approximately eighteen undisclosed defects Buyer had identified during his
deposition. Buyer opposed summary judgment,
re-submitting the same evidentiary materials
attached to his earlier motion for partial summary judgment against Paramount to controvert
the Bartnicks’ claim of no actual knowledge of
any defects in the Residence.
¶11 According to the certified court appearance docket included in the accelerated record,
the trial court took the matter under advisement. After Seller filed a “continued objection”
to summary judgment, the trial court set a
hearing time on October 31, 2014 for the
motion for summary judgment. By Order filed
November 19, 2014, the trial court noted the
appearance of each party’s counsel at the hearing and found “[Bartnicks’] motion for summary judgment is granted” and “[Paramount’s]
Motion to Dismiss is reconsidered and is also
hereby granted.” From this order, Buyer
appeals.
Alleged Errors
¶12 Buyer’s Petition in error challenges the
dismissal and summary judgment rulings in
the single order on appeal and also the trial
court’s intermediate ruling denying his motion
for partial summary judgment on Paramount’s
liability for professional negligence. We begin
with the summary judgment ruling in favor of
the Bartnicks followed by the separate rulings
in favor of Paramount.
ANALYSIS
Applicable law
¶13 One of the purposes for the Disclosure
Act is “placing a limitation on the doctrine of
caveat emptor in real estate sales and expanding
the situations in which a seller will be liable for
structural or other covered defects.” Rogers v.
Meiser, 2003 OK 6, ¶ 13, 68 P.3d 967, 971. This
purpose is partially accomplished by requiring
a seller of property “to deliver or cause to be
delivered to the purchaser of such property,”8
38
as occurred in this case, “a written property
condition disclosure statement ...which shall
include the information set forth in [§ 833(B)].”
§ 833(A)(2). “Disclosure” means “a written
declaration required by this act based on actual
knowledge of the seller regarding certain physical
conditions of the property.” (Emphasis added.)
§ 832(10).
¶14 A seller “shall not be liable for a defect or
other condition in the property if the existence of
the defect or other condition in the property was
disclosed in the disclosure statement or any amendment delivered to the purchaser before acceptance of the offer to purchase.” (Emphasis
added.) § 835(A). “Defect” is defined in the Act
as 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.” 60 O.S. 2011 § 832(9).
¶15 A seller is exempt from liability for “any
erroneous, inaccurate or omitted information
supplied to the purchaser as a disclosure
required by this act” in certain circumstances,
including if “[t]he error, inaccuracy or omission
was not within the actual knowledge of the
seller.” See § 835(B)(2). A purchaser may recover
in a civil action brought under the Disclosure
Act if a seller fails “to disclose in a disclosure
statement ... a defect which was actually known
to the seller prior to the acceptance of an offer to
purchase.” § 837(A)(1).
¶16 Another purpose of the Disclosure Act is
to delineate the duty or lack thereof of a real
estate licensee.9 Rogers v. Meiser, 2003 OK 6, ¶
13, n. 18. Pursuant to § 836(B), Paramount’s
two duties as a real estate licensee “assisting a
purchaser” are: 1) to obtain and make available
to the purchaser a written disclosure statement
and any amendment required prior to acceptance of an offer to purchase and 2) to disclose
to the purchaser any defects in the property
actually known to the licensee which are not
included in the disclosure statement or any
amendment. A purchaser may recover in a civil
action brought under the Disclosure Act against
a real estate licensee if the licensee fails “to disclose to a purchaser a defect actually known to
the real estate licensee prior to the acceptance
of an offer to purchase and which were not
included in the disclosure statement.” 60 O.S.
2011 § 837(A)(2).
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Vol. 88— No. 1 — 1/14/2017
Summary Adjudication in favor of the Sellers
¶17 In this case the 2013 Disclosure Statement the Bartnicks completed represented “the
Residence had not been damaged or affected
by flood, storm run-off, sewer backup, drainage or grading problems.” The Disclosure
Statement further represents the Bartnicks
“were not aware of:” 1) “water seepage, leakage or other drainage problems in any of the
improvements on the property”; 2) “any alterations or repairs having been made to correct
defects or problems”; 3) “treatment for termites...”; 4) “any damage caused by termites ...
on the Residence”; and 5) “other defect(s),
affecting the Residence, not otherwise disclosed.” By affidavit attached to their summary
judgment, the Bartnicks each deny actual
knowledge of numerous conditions, malfunctions or problems Buyer identified during
deposition as undisclosed “defects” in the
Residence.
¶18 The dispositive issue is whether the evidentiary material, considered in the light most
favorable to Buyer, reveals disputed material
facts or undisputed material facts with conflicting inferences of the Bartnicks’ actual knowledge
of the alleged “defects” prior to acceptance of
Buyer’s offer to purchase. Oklahoma Courts
have considered this issue generally when
affirming summary judgment based on the
failure of homebuyers to produce evidence the
seller or agent/real estate licensee had actual
knowledge of a defect.10
¶19 The Disclosure Act does not define actual knowledge, however we find Carbajal v.
Safary, 2009 OK 57, 216 P.3d 289, instructive on
its meaning. The sellers in Carbajal signed a
disclosure statement reflecting they were not
aware of any defect in the structural integrity
of their house. To assist with its purchase, the
buyer, Mr. Carbajal, retained a real estate
licensee. After the parties’ executed a purchase
contract, the sellers gave a copy of a six month
old structural report prepared by an engineer
to the licensee. He then orally informed Carbajal
about the report, advised him it was “clean,”
and after the closing gave him a copy of the
report. Carbajal took possession of the house
and while pulling up carpet found large cracks
in the foundation. He filed suit against only the
licensee for violations of the Disclosure Act,
which was dismissed after he presented his
evidence at the bench trial.
Vol. 88— No. 1 — 1/14/2017
¶20 The Court of Civil Appeals in Carbajal
affirmed the trial court’s dismissal, finding
there was no evidence showing his agent’s disclosure duties under the Act were triggered by
the receipt of the engineer’s report, because it
did not identify any “defect” as defined by the
Disclosure Act. The Supreme Court granted certiorari “to further clarify” that holding, considered the licensee’s duties under the Disclosure
Act, reviewed the engineer’s report, and held:
Other than the engineer’s report, Carbajal
cannot point to any evidence that shows
[the licensee] had any actual knowledge
that there was any defect in the house. The
Engineer’s report showed the house to be in
“relatively good structural condition” and
the conclusion stated that there were no
structural requirements. 2009 OK 57, ¶ 10.
¶21 In Carbajal, there was no dispute the
licensee received the engineer’s report, and
therefore, the dispositive issue was whether
the substance of that report actually identified a
structural defect which he did not disclose to the
purchaser. This issue is not addressed by the
Bartnicks’ summary judgment motion, whose
affidavits simply deny that when signing the
June 2013 disclosure statement they “had no
actual knowledge of any defects” in the various
systems or structures in the Residence.
¶22 To dispute the Bartnicks’ affidavits,
Buyer attaches numerous documents Paramount undisputedly received between JulyAugust 2010 during the sale of the Residence
for which Paramount’s real estate licensee was
a transaction broker for the purchaser, Kimberly Stallcup (now Seller Kimberly Bartnick),
i.e., the 2010 Disclosure statement, inspection
reports with cost estimates, repair invoices,
termite inspection and treatment report, and
an addendum to the 2010 purchase contract.
¶23 The 2010 Disclosure Statement reveals
the seller indicated the Residence “had been
damaged or affected by flood, storm run-off,
sewer backup, drainage or grading problems.”
The seller also wrote in the Disclosure Statement’s designated area for explaining questions to which “yes” was circled that “There is
occasional water from heavy raining in the
basement.” Ms. Stallcup’s initials are located
on all of the Disclosure Statement’s three pages.
¶24 The 2010 inspection reports, repair cost
estimates and repair invoices identify the Residence by its street address and “Paramount” as
either the party who ordered the services and/
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39
or to whom the bill was mailed or hand-delivered. Several invoices were specifically addressed to Paramount with the notation, “Attn:
Ms. Cronkhite.” The 2010 termite inspection
that reveals active termites and termite damage, indicates this report was ordered and provided only to Paramount. Another invoice
dated 10/31/2010, the date of the closing, is
billed to Paramount and describes $1,525.00
repairs made to the AC system, ducts, venting
for hot water tanks, etc.
¶25 However, two invoices from one plumbing business dated 8/1/2010 are addressed to
“Kimberly Stallcup” with the Residence’s street
address. Two other invoices from a different
plumbing company, dated “8/19/2010” and
“10/08/2010,” have “Kimberly Stallcup” written in a lower invoice corner with no named
addresee or street address. The “8/19/2010”
plumbing invoice indicates “main sewer
plugged ... had to dig up ... run 80 ft. cable to
main, pulled out lots of hair.”
¶26 To “Addendum A” to the 2010 purchase
contract, “Kimberly Stallcup” signed her name
on July 23, 2010, which in the handwritten
body of Addendum A, some unknown person
wrote,
“Due to the inspection reports, amount
exceeds contract price of $750 to be paid by
Seller for repairs, This Buyer is requesting
repairs in the amount of inspection reports
to be paid by the [Seller] in the amount of
$1850 for plumbing [and] $1250 on electrical,
or actual amount if less”.... and “Termite
Treatment $875 or actual amount if less.”
Addendum A establishes Ms. Stallcup may
have had general knowledge of the plumbing
and electrical inspections and the estimated
costs for the necessary repairs listed in those
inspections three years prior to the subject
transaction. However, neither Addendum A
nor anything else in the record demonstrates
whether Ms. Stallcup was simply informed
orally of such by Paramount’s licensee, as in
Carbajal, or if she personally received any of the
inspection reports and repair cost estimates for
her own review. Although she clearly indicated
on her 2013 Disclosure statement she “was not
aware of... any alterations or repairs having
been made to correct defects or problems,”
nothing in the record indicates whether Ms.
Stallcup (now Mrs. Bartnick) had actual knowledge about what specific repairs, if any, were
40
made before the closing in 2010 or at anytime
thereafter.
¶27 It is also unclear from Addendum A
whether Ms. Stallcup had actual knowledge of
a Termite Treatment to the Residence because
that part of the handwritten statement was
apparently added at a later time, as indicated
by the contracting parties’ initials, KJS and”KS
by MtK,” written next to the termite treatment
price. Nothing in the record establishes Ms.
Stallcup’s relationship to “MtK.” Further, similar to the Termite Inspection Report dated July
19, 2010 that was marked “forwarded to....
Agent and Inspecting Company,” the Termite
Follow-Up Report dated August 3, 2010 was
forwarded only to “Agent.” Neither report was
signed by Ms. Stallcup, and there is nothing in
the record to demonstrate Paramount ever sent
or gave Ms. Stallcup a copy of either report.
¶28 Without addressing all the alleged
defects, the evidentiary material submitted to
the trial court, considered in the light most
favorable to Buyer, demonstrates the existence
of disputed material facts as to the Bartnicks’
actual knowledge of the various alleged
“defects” in the Residence prior to their acceptance of Buyer’s offer to purchase which they
did not disclose in their 2013 Disclosure Statement. The trial court erred in granting the Bartnicks’ motion for summary judgment. That
part of the order on appeal is reversed and
remanded for further proceedings.
Denial of Partial Summary Judgment against
Paramount
¶29 Buyer now alleges trial court error with
this interlocutory decision, arguing “it is undisputed Paramount as a corporation had knowledge the “allegations in the 2013 Disclosure
Statement were false.” Buyer further argues
Paramount acted negligently in not alerting
him, and can not escape liability by establishing “an overbroad (sic) confidentiality policy
and denying the intra-corporate flow of knowledge to its employees.”
¶30 Buyer moved for partial summary judgment on Paramount’s liability for professional
negligence, arguing, inter alia,11 it “had a duty
to protect [Buyer] from injury, i.e., by being
honest about the actual history of the Residence and/or by noticing and informing [him]
of the contradictions between the 2010 Disclosure Statement, inspections and repair invoices
and the 2013 Disclosure Statement.” Buyer’s
statement of undisputed material facts describe
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Vol. 88— No. 1 — 1/14/2017
the details of Seller Kimberly Bartnick’s and
Paramount’s prior knowledge of the Residence’s problems and repairs and both parties’
failure to disclose the same three years later.
¶31 “The existence of a duty of care is a
threshold issue in any negligence action.” Lowery v. Echostar Satelite Corp., 2007 OK 38, ¶ 12,
160 P.3d 959, 964. “Whether the defendant
owed the plaintiff a duty of care is a question
of law for the court in a negligence action.” Id.
¶32 Although expressly seeking a liability
judgment against Paramount for “professional
negligence” under the Code, the duties Buyer
actually identifies and claims Paramount owes
him but breached, as well as his arguments and
statement of undisputed material facts, only
seeks a determination of Paramount’s failure to
disclose known defects to Buyer. However, the
Disclosure Act is “the exclusive vehicle for
recovery where misinformation is communicated in the sale of residential property.” White
v. Lim, 2009 OK 79, ¶ 17, 224 P.3d 679, 685. See
also Lopez v. Rollins, 2013 OK CIV APP 43, ¶ 10,
303 P.3d 911, 915 (it is sole and exclusive remedy for misinformation contemplated by the
Act.) The Disclosure Act “applies to, regulates
and determines rights, duties, obligations, and
remedies at common law or otherwise of the seller, real estate licensee, and purchaser with respect
to disclosure of defects in the property and supplants and abrogates all common law liability,
rights, duties, obligations and remedies therefore.” 60 O.S.2011 § 837(F). Thus, as argued in
Buyer’s motion for partial summary judgment,
Paramount’s duties and Buyer’s rights and
remedies must be determined pursuant to the
Disclosure Act.
¶33 In its response to Buyer’s partial summary judgment motion, Paramount does not
deny its receipt and even admits possession of
the various documents in a 2010 Transaction
file for the Residence. From our research, only
two courts have been presented with facts similar to this case and found actual knowledge of
defects may be obtained from a broker/licensee’s prior representation or information they
obtained from third parties.12
¶34 Paramount also fails to provide any real
argument or supporting authority for its confidentiality policy, upon which it bases its argument that “at no time did [Ms.] Sprague or
Paramount Homes have actual knowledge of
any defects in the Residence which were not
revealed to [Buyer] prior to closing.”
Vol. 88— No. 1 — 1/14/2017
¶35 The evidentiary material establishes Paramount’s confidentiality policy serves a useful
purpose by keeping financial information and
Social Security numbers private. Nevertheless,
to the extent its policy purports to keep confidential information that a real estate licensee is
required to disclose to the purchaser pursuant
to the Disclosure Act, we conclude Paramount’s
confidentiality policy is contrary to law and the
purposes of this Act. We further conclude the
evidentiary material Buyer submitted to support his motion for partial summary against
Paramount demonstrates undisputed material
facts from which reasonable persons could differ on the issue of Paramount’s actual knowledge of each of the alleged “defects” at issue.
Thus, we find no error with the trial court’s
denial of Buyer’s motion for partial summary
judgment.
Granting of Paramount’s Motion to Dismiss
Sua Sponte Dismissal of Buyer’s claims
against Paramount
¶36 Buyer alleges in his Petition in Error that
the trial court erred “by sua sponte reconsidering and granting dismissal to [Paramount].”13
In this case approximately 9 months had passed
since the trial court’s initial denial of Paramount’s motion to dismiss and the hearing the
trial court set for hearing the Bartnicks’ summary judgment motion. There is no transcript
of the hearing included in the accelerated
record from which this Court could determine
if Buyer objected or raised this error to the trial
court. However, to the extent this issue appears
to relate to an “alleged deprivation of due process of law” based on lack of notice, it is an
exception to the general rule requiring errors to
be raised to the trial court and such allegation
may be reviewed “despite a failure to preserve
error.” Patterson v. Beall, 2000 OK 92, ¶ 1, 19
P.3d 839, 841.
¶37 “’Notice by mail or other means as certain to ensure actual notice is a minimum constitutional precondition’ to the valid exercise of in
personam jurisdiction at every critical stage of
litigation.” (Italics in original.) Heiman v. Atlantic Richfield Co., 1991 OK 22, ¶ 8, 807 P.2d 257,
260. “The court setting for a ruling dispositive
of an action constitutes a critical stage of litigation.” (Emphasis added.) Id., ¶ 10. “Advance
personal notice of such setting is one’s constitutional due.” Id.
¶38 The appearance docket included in the
accelerated record indicates the trial court set a
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41
hearing for the Bartnicks’ motion for summary
judgment from which we assume notice was
provided to all parties, considering the
appealed order’s recitation that each party
appeared “through counsel” at the October 31,
2014 hearing. However, notice of a ruling that
may dispose of or terminate Buyer’s claim
against the Seller is not advance personal
notice of the trial court’s reconsideration of
Paramount’s previously denied § 2012(B)(6)
motion to dismiss, especially at this stage of the
case where discovery has since occurred and
Buyer moved for partial summary judgment
on Paramount’s liability for one of the claims
asserted in the petition with attached evidentiary materials. There is no indication in the
accelerated record or appearance docket that a)
Paramount reasserted its dismissal motion or
requested it be treated as a motion for summary judgment or 2) whether the trial court
considered any of the evidentiary material
when reconsidering the “dismissal” motion.
¶39 Further, unlike granting a motion for
summary judgment, the trial court’s granting of
a motion to dismiss may or may not be dispositive of a plaintiff’s claim against a defendant. A
trial court has a mandatory duty pursuant to 12
O.S. 2011 § 2012(G) to grant leave to amend
when a defect in pleading may be remedied. See
Fanning v. Brown, 2004 OK 7, ¶ 23, 85 P.3d 841.
“In order for a trial court to dismiss a claim for
failure to state a cause of action without giving
the plaintiff the opportunity to amend, it must
appear that the claim does not exist rather than
the claim has been defectively stated.” Id. If the
trial court concludes a claim does not exist, its
order must “contain a statement that no amendment of the petition could cure the defects in
[Plaintiff’s] petition.” Id., ¶ 24; see also Pellebon
v. State ex rel. Board of Regents, 2015 OK CIV
APP 70, ¶ 14, 358 P.3d 288.
¶40 The order on appeal neither allows for
amendment nor contains a statement indicating amendment would not cure the defects,
and thus fails to comply with § 2012(G). This
error together with the lack of notice to Buyer
requires reversal. However, the trial court’s
granting of Paramount’s dismissal motion
simultaneously with the Bartnicks’ summary
judgment motion implies its decision that no
cause of action exists for Buyer’s claim against
Paramount under the Disclosure Act for failure
to disclose known defects or professional negligence. Because said ruling would be inconsistent with this Court’s affirmance of the trial
42
court’s denial of Buyer’s motion for partial
summary judgment, we must address Buyer’s
allegation of error regarding the dismissal
order to avoid a repeat of the same ruling upon
remand.
¶41 Buyer contends Paramount’s dismissal
motion “applied only to the cause of action for
failure to disclose known defects under the
[Disclosure Act]” and “was insufficient for dismissal of any cause of action because it relied
on mere allegations in direct contradiction of
the allegations of the Petition.” The latter contention implies the trial court failed to apply
the applicable standard for a motion to dismiss
— “take as true all of the challenged pleading’s
allegations together with all reasonable inferences which may be drawn from them.” In
Oklahoma, a petition “must not be dismissed
for failure to state a legally cognizable claim
unless the allegations indicate beyond any doubt
that the litigant can prove no set of facts which
would entitle him to relief.” Indiana National
Bank v. State of Oklahoma ex rel. Dept. of Human
Services, 1994 OK 98, ¶ 3, 880 P.2d 371, 375.
¶42 The first part of Buyer’s allegation of
error contends Paramount’s dismissal argument did not address his cause of action for
professional negligence, which implies the trial
court’s granting of the motion to dismiss leaves
that theory of liability still at issue. We disagree
with Buyer’s interpretation of Paramount’s
motion, as explained under our analysis of
Buyer’s motion for partial summary judgment
and the foregoing analysis of Paramount’s §
2012(B)(6) motion to dismiss.
¶43 Taking as true all four of Buyer’s allegations of professional negligence against Paramount, we conclude the first allegation, i.e.,
“failing to disclose all documents and information necessary to [Buyer],” as this Court previously held, addresses the conduct of a real
estate licensee that is subject to the Disclosure
Act. This Act is “the exclusive vehicle for
recovery where misinformation is communicated in the sale of residential property.” White
v. Lim, 2009 OK 79, ¶ 17, 224 P.3d 679, 685. The
Disclosure Act “applies to, regulates and determines rights, duties, obligations, and remedies
at common law or otherwise of the seller, real
estate licensee, and purchaser with respect to disclosure of defects in the property and supplants and
abrogates all common law liability, rights, duties,
obligations and remedies therefore.” 60 O.S.
2011 § 837(F). Thus, Buyer’s first negligence
allegation must be determined on remand as
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Vol. 88— No. 1 — 1/14/2017
part of his action against Paramount for alleged
violations of its duty to disclose known defects
to him.
¶44 We reach the same conclusion for Buyer’s remaining negligence allegations against
Paramount, which we note for the record, were
not specifically addressed in Buyer’s motion
for partial summary judgment. Each allegation
involves a purchaser and a real estate licensee,
here Buyer and Paramount, to which the Disclosure Act exclusively “applies, regulates and
determines” their “rights, duties, obligations,
and remedies at common law or otherwise ...
with respect to disclosure of defects in the property.”
CONCLUSION
¶45 The trial court appealed from order on
summary judgement in favor of the Bartnicks
and the dismissal motion ruling dismissing the
claims against Paramount are both REVERSED
and REMANDED for further proceedings consistent with this opinion.
JOPLIN, J., concurs, and BELL, P.J., dissents.
Wm. C. Hetherington, Jr., Judge:
1. Buyer dismissed without prejudice his negligence claim against
Greg Palmer Electric LLC. Three months later Buyer dismissed with
prejudice the same claim against Stuart Benge, d/b/a “Stu Benge Plb.
Htg. AC.”
2. Because the relevant facts occurred in July 2012, the amendments to several sections in the Disclosure Act that went into effect in
November 2013 do not apply. All citations to the Disclosure Act will be
to its 2011 version.
3. Unlike Buyer’s allegations relating to Paramount’s pre-closing
conduct, Buyer does not identify in his petition when Paramount’s
recommendation allegedly occurred.
4. In separate paragraphs in Buyer’s petition, he alleges Sellers
“intentionally failed to identify numerous defects in the Residence”
and “failed to disclose the existence of known defects in the Residence.”
5. The Oklahoma Real Estate License Code defines “transactional
broker” as “a broker who provides services by assisting a party in a
transaction without being an advocate for the benefit of that party.” 59
O.S. 2011 § 858-360. “Transaction” means “any or all of the steps that
may occur by or between parties when a party seeks to buy, sell, lease,
rent, option or exchange real estate and at least one party enters into a
broker relationship subject to [the Code].” § 858-351(4). “Broker”
means a “real estate broker as defined in [§ 858-102 of this title] and
means, further, except where the context refers only to a real estate
broker, an associated broker associate, sales associate or provisional
sales associate authorized by the real estate broker to provide brokerage services.” § 858-351(1). “Party” means “a person who is a seller,
buyer, landlord, or tenant or a person who is involved in an option or
exchange.” § 858-351(2).
6. There is no order denying Paramount’s motion to dismiss
included in the Accelerated Record or listed in the certified court
appearance docket. However, the latter does list a court minute filed
February 10, 2014, stating “Deft Paramount Homes to have 10 days to
answer.” The implication from the court minute entry, i.e., trial court
denied Paramount’s motion to dismiss — is supported by the order on
appeal, which states “Paramount’s Motion to Dismiss is reconsidered
and is also hereby granted.”
7. There is no court minute or order denying Buyer’s motion for
partial summary judgment included in the Accelerated Record. However, the certified appearance docket includes an April 4, 2014 entry
stating “Summary Judgment denied.”
8. Section 832(8) of the Disclosure Act defines “property” as “residential real property improved with not less than one nor more than
Vol. 88— No. 1 — 1/14/2017
two dwelling units.” The § 833(A) disclaimer or disclosure statements
are also not required for certain transfers of ownership/interest,
including “newly constructed, previously unoccupied dwelling.” See §
838(A)(1)-(9) of the Disclosure Act.
9. Under the Disclosure Act definitions, “real estate licensee”
means “a person licensed under the Oklahoma Real Estate License
Code.” 60 O.S. 2011 § 832(4). As defined in the Code, “’[l]icensee’ shall
include any person who performs any act, acts or transactions set out
in the definition of broker and licensed under the [Code].” 59 O.S.2011
§ 858-102(11). See fn. 5 for the Code definition of “broker.” Both the
Disclosure Act and the Code define “person” as including an individual or a corporation, ability company, partnership, association, trust or
other legal entity or any combination thereof.” § 832(6)
10. See Moore v. Williams, 2008 OK CIV APP 76, 192 P.3d 1275 (Buyers did not submit evidence of the realtors’ actual knowledge of prior
methamphetamine manufacturing; summary judgment affirmed);
Keeler v. GMAC Global Relocation, 2009 OK CIV APP 88, 223 P.3d 1024
(affirmed summary judgment finding even if on-owner/occupier
GMAC had not substantially complied with the Disclosure Act’s disclosure requirements for a seller, no evidence produced it had actual
knowledge of the defects or accuracy of the prior owner’s disclosure
statement.
11. Buyer argues and includes as a undisputed material fact that
Paramount negligently provided him with a wrong disclosure statement for the Residence, i.e., one for another house in Enid he viewed
the same day. Review of his evidentiary material together with that
added by Paramount reveals Buyer made an offer on the other house,
whose seller was undisputedly represented by a different broker who
gave Buyer via Ms. Sprague an outdated disclosure statement. Before
the other licensee could provide Ms. Sprague with a current disclosure
statement, that seller denied Buyer’s offer. The undisputed evidentiary
material further reveals Buyer received the disclosure statement from
the Bartnicks prior to their acceptance of his offer.
12. See Svendsen v. Stock, 23 P.3d 455 (Wash. App. 2001) (broker had
knowledge of flooding problem on the subject property because he
had represented the purchaser of the uphill property which drainage
problem caused the flooding; his knowledge was independent of broker’s role in filling out seller’s disclosure form); Bloor v. Fritz, 180 P.3d
805 (Wash. App. 2008) real estate agent knew of the history of illegal
drug manufacturing at the property from his contacts with a newspaper reporter, narcotics task force and law enforcement; agent’s failure
to disclose actual knowledge of said history violated his statutory duty
to disclose.
13. All three entries to the appearance docket for the October 31,
2014 hearing state “MSJ granted as to both remaining defendants,”
suggesting the trial court may have believed Paramount had also
moved for summary judgment. There is no hearing transcript to confirm the correctness of the entry, however the subsequently filed order
on appeal grants Paramount’s motion to dismiss. “Recitals in a journal
entry of judgment are taken as true and correct and are prima facie
proof of the facts stated therein where not impeached or contradicted
by the record.” Husband v. Husband, 2009 OK CIV APP 42, ¶ 21, 233 P.3d
383, 387 (citing Haskett v. Turner, 1955 OK 329, 290 P.2d 133 (Syl. 1)).
Nothing in the accelerated record impeaches or contradicts the recitations in the order of appeal, and we must review the court’s ruling as
a motion to dismiss.
2016 OK CIV APP 77
KETCH, INC., an Oklahoma Corporation on
Behalf of Itself and All Others Similarly Situated, Plaintiff/Appellee, vs. ROYAL WINDOWS, INC., a Texas Corporation, Defendant/Appellant.
Case No. 113,986. November 8, 2016
APPEAL FROM THE DISTRICT COURT OF
OKLAHOMA COUNTY, OKLAHOMA
HONORABLE PATRICIA G. PARRISH,
TRIAL JUDGE
AFFIRMED IN PART, REVERSED IN
PART AND REMANDED FOR FURTHER
PROCEEDINGS
The Oklahoma Bar Journal
43
Matthew J.G. McDevitt, Shawn E. Arnold,
LYTLE, SOULE & CURLEE, Oklahoma City,
Oklahoma, for Plaintiff/Appellee
Jeffrey J. Box, JEFFREY J. BOX, P.C., Oklahoma
City, Oklahoma, for Defendant/Appellant
JERRY L. GOODMAN, CHIEF JUDGE:
¶1 Royal Windows, Inc. (Royal) appeals an
October 4, 2013, order granting Ketch, Inc.’s, et
al. (Ketch) motion for summary judgment on
liability under the Telephone Communication
Protection Act (TCPA), 47 U.S.C. § 227 et seq., as
amended by the Junk Fax Protection Act (JFPA),
as well as a May 1, 2015, order granting Ketch
summary judgment and awarding damages in
the amount of $290,000.00. The appeal was
assigned to the accelerated docket pursuant to
Oklahoma Supreme Court Rule 1.36(a)(1), 12
O.S.2011 and Supp. 2013, Ch. 15, App. 1 and In
Re Amendments to Oklahoma Supreme Court
Rules, 2013 OK 67. Based upon our review of the
record and applicable law, we affirm in part,
reverse in part and remand for further proceedings consistent with this opinion.
BACKGROUND
¶2 Ketch was a customer of Royal from 2001.
On March 20, 2008, Ketch requested a 2008
catalogue from Royal. On March 26, 2008,
Royal sent Ketch a facsimile advertisement.
The advertisement included Royal’s contact
information, address, and facsimile number.
On July 17, 2008, Ketch filed a class action petition against Royal under the TCPA, 47 U.S.C. §
227 et seq., asserting the facsimile did not include required opt-out language, i.e., if you
had received the facsimile in error, please call
to be removed. On December 18, 2009, the trial
court granted Ketch’s motion for class certification. Royal did not appeal this order.
¶3 On April 12, 2013, Ketch filed its first
amended motion for summary judgment,
asserting it was entitled to relief under the
TCPA. Ketch asserted, inter alia, that all facsimile advertisements, whether solicited or
unsolicited, must contain the opt-out language
or liability attached. Ketch maintained Royal’s
facsimiles did not contain the required opt-out
notice and were therefore in violation of the
TCPA. Royal responded, disputing Ketch’s
assertions. Although Royal acknowledged its
facsimile advertisements did not contain any
opt-out notice, it asserted the TCPA only
requires the opt-out language for unsolicited
facsimile advertisements.1 After additional
44
briefing and a hearing, the trial court, by order
entered on October 4, 2013, granted Ketch’s
motion for summary judgment, finding “all
faxes, including faxes sent where the advertiser
and recipient have an established business
relationship, must contain a notice allowing
the recipient to ‘opt-out’ of receiving additional faxes.”
¶4 Ketch subsequently filed a motion for
summary judgment on damages, asserting
Royal sent a facsimile to the 103 Class Members between three (3) and seven (7) times from
August 1, 2006, to July 17, 2008, for total damages in the amount of $303,500.00. Ketch further requested treble damages, asserting Royal
willfully and knowingly violated the TCPA.
Royal disagreed, asserting material disputed
factual questions existed regarding the number of TCPA violations allegedly committed
and the entities that comprise the class. By
order entered on May 1, 2015, the trial court
granted Ketch’s motion for summary judgment, finding 580 facsimile advertisement
violations. The court awarded $290,000.00 in
damages. The court denied Ketch’s request for
treble damages.
¶5 Royal appeals.
STANDARD OF REVIEW
¶6 Summary judgment is properly granted
“when the pleadings, affidavits, depositions,
admissions or other evidentiary materials
establish that there is no genuine issue as to
any material fact and that the moving party is
entitled to judgment as a matter of law.” Davis
v. Leitner, 1989 OK 146, ¶ 9, 782 P.2d 924. In
reviewing a grant of summary judgment, we
must view all conclusions and inferences to be
drawn from the evidentiary materials in a light
most favorable to the party who opposes the
motion. Id.
¶7 An appeal from an order granting summary judgment is subject to de novo review.
Shull v. Reid, 2011 OK 72, ¶ 3, 258 P.3d 521. De
novo review involves a plenary, independent,
and non-deferential examination of the trial
court’s decision. In re Estate of Bell-Levine, 2012
OK 112, ¶ 5, 293 P.3d 964, 966.
ANALYSIS
A. TCPA
¶8 For its first assertion of error, Royal asserts
a question of fact exists as to whether the facsimile advertisements sent to Ketch and other
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Class Members were solicited or unsolicited,
precluding summary judgment. Royal contends
only unsolicited facsimile advertisements are
subject to the TCPA, i.e., must contain opt-out
language. Ketch disagrees, contending all
facsimile advertisements must contain opt-out
language.
¶9 The TCPA imposes restrictions on the use
of automatic telephone dialing systems, artificial or prerecorded voice messages, and telephone facsimile machines to send unsolicited
advertisements unless the unsolicited advertisement contains a notice meeting the requirements
of the TCPA. 47 U.S.C. § 227(b)(1).2 Relevant to
this opinion, an unsolicited advertisement is
defined under the TCPA as “any material advertising the commercial availability or quality of
any property, goods, or services which is transmitted to any person without that person’s
prior express invitation or permission, in writing or otherwise.” 47 U.S.C. § 227(a)(5).
¶10 The TCPA was amended on July 9, 2005,
by the JFPA. The JFPA permits facsimile advertisements to be sent when an advertiser has an
established business relationship with the
recipient. 47 U.S.C. § 227(b)(1)(C).3 However,
the Act requires that an unsolicited advertisement to an established business relationship
contain the required opt-out language. Id. at §
227(b)(1)(C)(3) and (b)(2)(D)(i-vi). The opt-out
notice must be clear and conspicuous, be
located on the first page of the unsolicited
advertisement, provide a 24-hour domestic
telephone number, and identify a cost-free
mechanism for the recipient to opt-out of
receiving future unsolicited advertisements.
Id. at § 227 (b)(2)(D)(i)-(iv).
¶11 Notably, the TCPA does not expressly
require opt-out language on the sending of
solicited or consented-to facsimile advertisements. However, the TCPA provides that the
Federal Communications Commission (FCC)
“shall proscribe regulations to implement the
requirements” of the TCPA. Id. at § 227(b)(2).
The FCC specifically promulgated a regulation
requiring all facsimile advertisements, whether
solicited or unsolicited, to include an opt-out
notice after August 1, 2006. See 47 C.F.R. §
64.1200(a)(3)(iv) (2007) (“A facsimile advertisement that is sent to a recipient that has provided prior express invitation or permission to
the sender must include an opt-out notice .”).4
In addition, the FCC has reiterated its position
that the opt-out notice is required for all facsimile advertisements, even if there is an estabVol. 88— No. 1 — 1/14/2017
lished business relationship or the sender has
obtained prior consent. In re Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991; Junk Fax Prevention Act of
2005, 71 Fed.Reg. 25967-01, 25972, 2006 WL
1151584 (2006) (“In addition, entities that send
facsimile advertisements to consumers from
whom they obtained permission must include
on the advertisements their opt-out notice and
contact information to allow consumers to stop
unwanted faxes in the future.”).
¶12 In the present case, the parties dispute
whether the FCC regulation applies to both
solicited and unsolicited facsimile advertisements. Oklahoma has not addressed this issue.
¶13 In Nack v. Walburg, 715 F.3d 680 (8th Cir.
2013), a fax advertisement was sent to the
plaintiff with the express consent of the plaintiff’s agent but the fax lacked the opt-out notice
mandated by the FCC. The trial court granted
summary judgment to the defendant, finding
the FCC’s regulation requiring an opt-out
notice applied only to unsolicited faxes. The
Eighth Circuit reversed based on a submission
by the FCC stating the opt-out requirement
applies to all faxes. The court noted that when
an agency was specifically charged with enforcing a statute and promulgating regulations to
implement that statute, the court deferred to
the agency’s interpretations. Id. at 684. The
court stated the proper procedure for challenging the regulation was through the FCC’s
administrative procedures, noting the Hobbs
Act precluded it from entertaining such challenges. Id.
¶14 The court noted the Hobbs Act provides
that the Courts of Appeals have exclusive jurisdiction to determine the validity of FCC orders.
Id. at 685 (citing 28 U.S.C. § 2342 (2006) (“The
court of appeals ... has exclusive jurisdiction to
enjoin, set aside, suspend (in whole or in part),
or to determine the validity of (1) all final
orders of the Federal Communications Commission made reviewable by section 402(a) of
title 47[.]”); 47 U.S.C. § 402(a) (2006) (“Any
proceeding to enjoin, set aside, annul, or suspend any order of the Commission under this
chapter (except those appealable under subsection (b) of this section) shall be brought as provided by and in the manner prescribed in
chapter 158 of Title 28.”). A party challenging
an FCC regulation as ultra vires must first petition the agency itself and, if denied, appeal the
agency’s disposition directly to the Court of
Appeals as provided by the statute. Id. at 685
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45
(citing FCC v. ITT World Commc’ns, Inc., 466
U.S. 463, 468 (1984)). “[T]he procedural path
designed by Congress serves a number of valid
goals: It promotes judicial efficiency, vests an
appellate panel rather than a single district
judge with the power of agency review, and
allows ‘uniform, nationwide interpretation of
the federal statute by the centralized expert
agency created by Congress to enforce the
TCPA.”’ Id. at 685 (citing CE Design, Ltd. v.
Prism Bus. Media, Inc., 606 F.3d 443, 450 (7th
Cir.2010) (quoting N.Y. Co. v. N.Y. Dep’t of Labor,
440 U.S. 519, 528 (1979)).
¶15 Notably, a number of federal courts have
stayed proceedings in the district court and
have permitted a party to file to a petition with
the FCC seeking a declaratory ruling whether
the opt-out notice is required for both solicited
and unsolicited facsimile advertisements. See,
e.g., St. Louis Heart Ctr., Inc. v. Gilead Palo Alto,
Inc., No. 4:13-CV-958-JAR, 2013 WL 5436651, at
*1-2 (E.D.Mo. Sept.27, 2013); Raitport v. Harbour
Capital Corp., 09-CV-156-SM, 2013 WL 4883765,
at *1 (D.N.H. Sept. 12, 2013).
¶16 On October 30, 2014, the FCC issued an
order clarifying its regulation. The order specifically provides that solicited faxes — those
sent with a party’s prior express permission
— require an opt-out notice (Dkt. No. 36 at
5-29). Accordingly, this Court finds the FCC’s
regulation unequivocally requires all advertisements, solicited and unsolicited, to include
an opt-out notice. Royal’s assertion to the contrary is therefore denied.
¶17 In the present case, Royal does not dispute that its seven (7) facsimile advertisements
do not contain an opt-out notice. Accordingly,
Royal has violated the TCPA, as amended by
the JFPA. The trial court’s October 4, 2013,
order granting Ketch summary judgment is
therefore affirmed.
B. Damages Under the TCPA, as amended by
the JFPA
¶18 For its next assertion of error, Royal contends there are material disputed factual questions regarding the number of TCPA violations
it allegedly committed as well as the entities
that comprise the actual class.
¶19 The TCPA provides statutory damages
under a private right of action in the amount of
$500.00 for each violation. 47 U.S.C. § 227(b)(3)
(B). In addition, the statute further authorizes an
46
award of up to three (3) times that amount if the
facsimile was sent knowingly or willfully. Id.
¶20 Royal disputes that Ketch has established its damages, maintaining that material
questions of fact exist. Royal asserts a question
of fact exists as to when each facsimile advertisement was sent to a Class Member and that
Ketch has merely assumed specific dates that
are not supported by evidentiary material. For
example, Royal notes that one (1) advertisement has a date of “April 2008” and that Ketch
merely assumes Royal sent the advertisement
in “March of 2008” without providing any evidence to support this assumption. Royal maintains the exact date a facsimile was sent is
necessary to determine if a particular Class
Member was “active” on the date the facsimile
was sent. Daniel Sean O’Neill, Royal’s vice
president of sales and marketing, testified a
facsimile advertisement was normally sent to a
business entity for only one (1) year following
any account activity Royal had with the business entity. However, the business entity would
be removed from the facsimile list if they
moved, closed their business, went bankrupt,
or did not purchase anything from Royal for a
period of one (1) year, i.e., was no longer active.
With respect to Ketch, O’Neill stated it was on
the inactive list effective on May 26, 2006, and
only became active upon its request for information on March 20, 2008. Thus, it would not
have received any facsimile advertisements
prior to March 20, 2008. Royal alleges periods
of similar non-activity by other listed Class
Members.5 Thus, Royal contends questions of
fact exist as to the number of alleged TCPA
violations.
¶21 Ketch disagrees, contending Royal faxed
unsolicited advertisements to 103 Class Members with whom Royal had an established
business relationship between three (3) and
seven (7) times from August of 2006 through
July of 2008. Ketch asserts that each of the 103
Class Members had account activity with Royal
and therefore received a facsimile advertisement. Thus, Ketch contends Royal violated the
TCPA 607 times and requested statutory damages in the amount of $303,500.00. Ketch further asserts, however, that assuming a different
date for the sending of the facsimile advertisements, as Royal has alleged, Royal would still
be responsible for sending 579 facsimile advertisements to Class Members during the relevant time period. The trial court ultimately
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awarded Ketch $290,000.00 in damages, finding a total of 580 violations.
tisements were faxed to Class Members sometime in March of 2008.
¶22 A review of the record presented reveals
questions of fact exist as to the number of
TCPA violations. The record provides Royal
sent seven (7) facsimile advertisements. The
seven (7) advertisements provide as follows:
¶25 Furthermore, Esau Services and Fabric
Works were inactive prior to March of 2008.
Thus, if the advertisements were faxed prior to
March of 2008, both Esau Services and Fabric
Works would have been inactive and would
not have received the advertisements, resulting
in no violation of the TCPA. Similar results
exist for other Class Members. Accordingly, the
specific dates the advertisements were faxed to
a Class Member are a material fact in dispute
and are relevant to a determination of the number of Royal’s violations of the TCPA.
• 3rd Quarter Promotions August 1, 2006
through September 30, 2006
• September 8, 2006
• Look What’s New for 2007
• 10% off 2” Signature Wood 10/01/07 thru
12/31/07
• 2008 Promotions (includes a facsimile time
stamp date of March 26, 2008)6
• 2008 Promotions
• April 2008
¶23 For purposes of summary judgment,
Ketch asserts that one (1) advertisement was
faxed on August 1, 2006, one (1) on September
8, 2006, one (1) in December of 2006, one (1) in
September of 2007, and three (3) in March of
2008. However, the advertisements, with at
most two (2) exceptions, do not include a specific date or other information on when it was
faxed to a specific Class Member. Ketch offers
no factual support to demonstrate that a particular advertisement was sent on the date it
identifies. Ketch’s assumptions directly impact
its damages, as such information is necessary
to determine the number of TCPA violations.
As Royal noted, a Class Member will only
receive an advertisement if it was “active” on
the date the facsimile was sent. A Class Member is deemed inactive if they moved, closed
their business, went bankrupt, or did not purchase anything from Royal for a period of one
(1) year.
¶24 For example, with respect to Class Members Esau Services Co, Inc., and Fabric Works,
Ketch asserts three (3) TCPA violations occurred
when three (3) advertisements were faxed in
March of 2008. To establish these violations,
Ketch asserts the two (2) “2008 Promotions”
and the “April 2008” advertisements were
faxed in March of 2008. However, as previously noted, the record only establishes that one
(1) advertisement was sent on March 26, 2008.
There is nothing in the record to substantiate
Ketch’s assertion that the other two (2) adverVol. 88— No. 1 — 1/14/2017
¶26 Where, as in the summary judgment
record before us, contradicted material facts
are present, summary judgment is not appropriate. As stated by the Oklahoma Supreme
Court in Harmon v. Cradduck, 2012 OK 80, 286
P.3d 643:
Examination of an order sustaining summary judgment requires Oklahoma courts
to determine whether the record reveals
disputed material facts or whether reasonable minds could draw different conclusions from undisputed facts. All facts and
inferences must be viewed in a light most
favorable to the party opposing summary
adjudication. If the essential fact issues are
in dispute, or reasonable minds might
reach different conclusions in light of the
inferences drawn from undisputed facts,
summary judgment should be denied.
Id. at ¶ 11, at 648 (citations omitted). Further,
the trial “court should not weigh the evidentiary materials on a motion for summary judgment. It is not the purpose of summary judgment to substitute trial by affidavit for a trial
according to law.” Malson v. Palmer Broad. Grp.,
1997 OK 42, ¶ 11, 936 P.2d 940, 942 (citation
omitted).
[Summary judgment] is a method for identifying and isolating non-triable fact issues,
not a device for defeating the opponent’s
right to trial. Only that evidentiary material which entirely eliminates from testing by
trial some or all material fact issues will
provide legitimate support for nisi prius
use of summary relief in whole or in part
…. The function of summary process is not
to set the stage for trial by affidavit, but to
afford a method of summarily terminating
a case (or eliminating from trial some of its
issues) when only questions of law remain.
The Oklahoma Bar Journal
47
Shamblin v. Beasley, 1998 OK 88, ¶ 9, 967 P.2d
1200 (footnotes omitted).
Appellants, vs. OKLAHOMA
CORPORATION COMMISSION, Appellee.
¶27 Accordingly, the evidentiary material
offered by Ketch in support of its motion
reveals material questions of fact as to the
number of TCPA violations. Thus, we conclude
summary judgment was erroneously granted
on the issue of damages. The trial court’s May
1, 2015, order granting Ketch damages in the
amount of $290,000.00 is therefore reversed
and the matter is remanded for further proceedings consistent with this opinion.
Case No. 114,322. November 7, 2016
CONCLUSION
¶28 The trial court’s October 4, 2013, order
granting Ketch summary judgment on the
issue of liability is affirmed. The trial court’s
May 1, 2015, order granting Ketch damages in
the amount of $290,000.00 is reversed and the
matter is remanded for further proceedings
consistent with this opinion.
¶29 AFFIRMED IN PART, REVERSED IN
PART AND REMANDED FOR FURTHER
PROCEEDINGS.
WISEMAN, P.J., and FISCHER, J., concur.
JERRY L. GOODMAN, CHIEF JUDGE:
1. Royal also untimely asserted the trial court abused its discretion
in granting class certification.
2. Amended by PL 114-74, November 2, 2015, 129 Stat 584.
3. An established business relationship is defined as: a prior or
existing relationship formed by a voluntary two-way communication
between a person or entity and a residential subscriber with or without
an exchange of consideration, on the basis of the subscriber’s purchase
or transaction with the entity within the eighteen (18) months immediately preceding the date of the telephone call or on the basis of the
subscriber’s inquiry or application regarding products or services
offered by the entity within three months immediately preceding the
date of the call, which relationship has not been previously terminated
by either party. 47 C.F.R. § 64.1200(f)(4).
4. This provision was modified and reordered by the FCC, effective
July 11, 2012. 77 F.R. 34233, 34246-34247.
5. For example, Ketch claims Class Member B&K Carpet Design
received three (3) facsimile advertisements in “March of 2008” in violation of the TCPA. Royal notes, however, that B&K’s only activity from
2006 to July 2008 was a request for a sample kit on March 18, 2008.
Thus, it was inactive until March 18, 2008, and would not have
received an advertisement until this time. Royal contends the actual
date the facsimile was sent is therefore clearly relevant to determine if
B&K received the three (3) facsimile advertisements as alleged by
Ketch. For example, Royal notes one (1) of the advertisements is a
“2008 Promotions” and could have been sent at any time prior to
March 18, 2008. Thus, the actual number of TCPA violations is disputed.
6. Royal contends this facsimile is the one faxed to Ketch on March
26, 2006.
2016 OK CIV APP 78
JANE BERRYMAN, ROBERTA
GREENWELL, JOHN WOOD and BONNIE
CAIN, VICTOR TRUMBELL and TRINA
MEHOJAH (formerly Trina Jankowsi),
48
APPEAL FROM THE OKLAHOMA
CORPORATION COMMISSION
AFFIRMED
Wes Johnston, JOHNSTON & ASSOCIATES,
Chickasha, Oklahoma, for Appellants
Robert J. Campbell, Jr., DEPUTY GENERAL
COUNSEL, OKLAHOMA CORPORATION
COMMISSION, Oklahoma City, Oklahoma, for
Appellee
DEBORAH B. BARNES, JUDGE:
¶1 Appellants seek review of a final order of
the Oklahoma Corporation Commission (OCC)
denying their request for reimbursement from
the Petroleum Storage Tank Indemnity Fund
(Indemnity Fund). Based on our review, we
affirm.
BACKGROUND
¶2 In January 2013, Appellants filed an application for reimbursement from the Indemnity
Fund. Appellants sought payment from the
Indemnity Fund in the amount of $750,000 for
damages sustained as a result of a petroleum
leak (or leaks) as reflected in a judgment rendered in a district court action, following settlement, against the owner of a gasoline station.
Appellants’ application was not approved, and
Appellants commenced a formal proceeding
before the OCC.
¶3 After a hearing conducted before an
Administrative Law Judge (ALJ) over the
course of nine days in the spring of 2013, the
ALJ denied Appellants’ application. As stated
in the ALJ’s report, Appellants “filed an application seeking reimbursement for property
and personal injuries sustained as a result of a
confirmed release from the site of an old retail
gasoline station.” Among other alleged damages, damage occurred to the home of one of
the Appellants when her home “exploded and
burned” in October 2007. This “explosion was
later determined to be caused by vapor in a
water well where free product was floating on
top of the water in the well,” and this free
product accumulated in the well at least in part
due to the well’s proximity to an underground
petroleum storage tank located at the gasoline
station.
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Vol. 88— No. 1 — 1/14/2017
¶4 The ALJ denied the application because,
among other things, the cap on available funds
for the release had already been reached. In
addition, the ALJ found unpersuasive Appellants’ argument that the cap for a single occurrence does not apply in this case because the
damage was the result of at least two occurrences rather than just one.
¶5 After hearing arguments of counsel, and
after reviewing the record, the Referee recommended that the report of the ALJ be affirmed,
and, in September 2015, the OCC entered its
Final Order “find[ing] that the recommendation of the ALJ to deny the relief requested by
[Appellants] should be affirmed as recommended by the Referee.”
¶6 From the Final Order of the OCC, Appellants appeal.
STANDARD OF REVIEW
¶7 Regarding the appropriate standard of
review this Court must apply on appeal, the
Oklahoma Constitution provides as follows:
The Supreme Court’s review of appealable orders of the Corporation Commission
shall be judicial only, and in all appeals
involving an asserted violation of any right
of the parties under the Constitution of the
United States [or] the Constitution of the
State of Oklahoma, the Court shall exercise
its own independent judgment as to both
the law and the facts. In all other appeals
from orders of the Corporation Commission the review by the Supreme Court shall
not extend further than to determine
whether the Commission has regularly
pursued its authority, and whether the
findings and conclusions of the Commission are sustained by the law and substantial evidence. Upon review, the Supreme
Court shall enter judgment, either affirming or reversing the order of the Commission appealed from.
Okla. Const. art. 9, § 20.
¶8 Regarding review of issues of fact and the
meaning of “substantial evidence,” the Oklahoma Supreme Court has stated:
The [OCC] has a wide discretion in the
performance of its statutory duties, and
this Court may not substitute its judgment
upon disputed factual determinations for
that of the [OCC] but is restricted to a
determination of substantial evidentiary
Vol. 88— No. 1 — 1/14/2017
support for the order issued under authority of the statutes. Searching a record for
substantial evidence supporting the order
appealed does not entail a comparison of
the parties’ evidence to determine that
which is most convincing but only that the
evidence supportive of the order be considered to determine whether it implies a
quality of proof inducing a conviction that
the evidence furnished a substantial basis
of facts from which the issue could be reasonably resolved. Substantial evidence has
been additionally outlined as something
more than a scintilla; possessing something
of substance and of relevant consequence
carrying with it a fitness to induce conviction, but remains such that reasonable persons may fairly differ on the point of establishing the case. A determination of substantial evidentiary support does not
require weighing the evidence but only a
measurement of the supportive points to
determine whether the criterion of substantiality is present.
Sundown Energy, L.P. v. Harding & Shelton,
Inc., 2010 OK 88, ¶ 9, 245 P.3d 1226 (citations
omitted).
¶9 Furthermore, “[i]n cases involving questions of law relating to statutory interpretation,
the appropriate standard of review is de novo,
i.e., a non-deferential, plenary and independent review of the trial court’s legal rulings.”
Hubbard v. Kaiser-Francis Oil Co., 2011 OK 50, ¶
6, 256 P.3d 69 (internal quotation marks omitted) (citation omitted).
[G]reat weight is accorded the expertise of
an administrative agency. On review, a presumption of validity attaches to the exercise of expertise. An appellate court may
not substitute its judgment for that of an
agency, particularly in the area of expertise
which the agency supervises.
However, an administrative agency
order interpreting law is reviewed using a
de novo standard. It has been noted that an
administrative agency’s statutory interpretation must be reasonable, and the agency
cannot extend its power beyond that granted by statute.
In re Protest to Certificate of Title Brand Issued to
AAAA Wrecker Serv., Inc., 2010 OK CIV APP
121, ¶¶ 9-10, 242 P.3d 578 (internal quotation
marks omitted) (citations omitted).
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49
ANALYSIS
I. The Oklahoma Petroleum Storage Tank
Release Indemnity Program
¶10 The Oklahoma Legislature created the
Petroleum Storage Tank Release Indemnity
Program (Indemnity Program) in 1989. State ex
rel. Okla. Corp. Comm’n v. McPherson, 2010 OK
31, ¶ 2, 232 P.3d 458. The McPherson Court
explained that, as a general matter,
[t]he Indemnity Program included the
[Indemnity Fund] to pay statutorily specified expenses related to rehabilitating sites
polluted by petroleum from petroleum
storage tank systems. 17 O.S. §§ 352(5), 353.
The [OCC] has jurisdiction over the
[Indemnity Fund] and [Indemnity Program]. 17 O.S. 2001 § 52.
McPherson, ¶ 2 (footnotes omitted). A first
impression issue presented on this appeal is
whether the Indemnity Program authorizes
reimbursement for actual physical damages
and medical injuries caused by an eligible
release, or whether reimbursement for such
damages and injuries is limited to those that
occur as a result of remediation efforts.
¶11 The Indemnity Program provides that
“any person entitled to reimbursement pursuant to the provisions of this act shall be reimbursed for certain allowable costs in connection with such corrective action, subject to the
conditions specified by this act.” 17 O.S. 2011 §
351(B) (footnote omitted). To be eligible for
reimbursement, one must first of all be an “eligible person.” The definition of “eligible person” includes, among other things, a “person
who is an impacted party[ or] adjacent owner
… who willingly submits to the regulations of
the [OCC] governing petroleum storage tank
system owners, operators or agents[.]” Id. §
352(6)(d). An “impacted party” is defined as
an owner whose property has been impacted by a release from an on-site or off-site
petroleum storage tank which the impacted person did not own or operate and for
which the impacted person has had no
responsibility under Commission rules.
An impacted party may apply for an eligibility determination on reimbursement
from the [Indemnity Fund]. An impacted
party is not subject to the [Indemnity
Fund] deductible[.]1
Id. § 352(9).2 In addition, an “eligible release” is
defined as “a release for which allowable costs,
50
as determined by the Administrator, are reimbursable to or on behalf of an eligible person[.]” Id. § 352(8).
¶12 In this case, the ALJ concluded Appellants are “[c]learly . . . ‘impacted parties’ under
the statute” in relation to the eligible release
from the gasoline station. However, despite
statutory language providing for reimbursement for “actual physical damage caused by an
eligible release” and for “medical injuries
incurred as a result of the eligible release,” id. §
356(I), the ALJ (and the Referee) reached the
conclusion that “nothing in the Statutes governing the [Indemnity] Fund authorize[s] the
payment of claims for personal injury or property damage unless those damages occur as a
result of remediation efforts.”3 The ALJ stated,
among other things, that the Indemnity Fund
was not “set up to insure or indemnify an individual gas station operator or provide a source
of funds to give to parties who have suffered
personal injury or property damage as a result
of a release,”4 relying in part on the fact that
distributors of fuel, and not retailers, collect the
$0.01 per gallon tax which is used to fund the
Indemnity Fund.
¶13 First of all, however, the Oklahoma
Supreme Court has explained that “[t]he § 354
assessment of one cent ($0.01) per gallon” is “a
direct tax on the ultimate consumer of the
fuel,” and it is “precollected” by an assessment
on the sale by distributors merely for the purpose of convenience. State ex rel. Wright v. Okla.
Corp. Comm’n, 2007 OK 73, ¶ 19 & n.11, 170 P.3d
1024. We disagree that the ALJ’s conclusion in
this regard — that the Indemnity Fund can
only be used to reimburse for personal injury
and property damage caused by the remediation efforts, and not for damage caused by a
petroleum spill or leak — is supported by the
method of collection of the § 354 assessment.
¶14 In addition, § 350(C) of the Indemnity
Program sets forth the Legislature’s intent that
the Indemnity Fund pay claims in a manner
similar to and consistent with the payment of
claims by insurance companies:
The Administrator of the [Indemnity Program] shall maintain, operate and administer the [Indemnity Program] and process,
review and pay claims in a manner similar to
and consistent with the processing, review and
payment of claims by self-insurance pools and
insurance companies.
(Emphasis added.)
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¶15 More importantly, the Indemnity Program plainly provides that it
erty damage to ensure they received compensation to the exclusion of others.
shall cover corrective action taken and other
actual physical damage caused by an eligible
release. The [Indemnity Fund] shall also
cover any medical injuries incurred as a result
of the eligible release to persons other than
employees of the eligible person of the
storage tank system or their agents and
independent contractors retained to perform any such corrective action.
Elsewhere in his report the ALJ stated that “[i]
f the funds available were spent paying for
personal injuries and/or property damages
caused by a release and not in the course of a
cleanup, it would clearly impact the Fund’s
ability to clean up spills.”
Id. § 356(I) (emphasis added.) See also id. §
353(A) (“The Indemnity Fund shall be administered . . . for the benefit of those persons
determined to be eligible . . . to receive total or
partial reimbursement for: . . . 3. Payment of
claims for property damage or personal injury
resulting from an eligible release[.]”) (emphasis
added); id. § 356(G) (“for the corrective action
taken or the damages or the injuries associated with
a release”) (emphasis added).
¶16 The ALJ correctly states that “[n]othing
in the statutes states or implies that the [Indemnity Fund] is to be used to compensate parties
for personal injuries and property damage as a
priority to remediation efforts.”5 However, the
fact that such a priority is not set forth in the
statutes does not mean the plain language of
the statute — that the Indemnity Fund “shall
cover . . . actual physical damage caused by an
eligible release” and “shall also cover any
medical injuries incurred as a result of the eligible release” — is negated. Furthermore, the
fact that other parts of the Indemnity Program
plainly provide that certain remediation efforts
may be reimbursed by the Indemnity Fund
does not negate the Legislature’s intent that
physical damage and medical injuries caused
by an eligible release also be covered.
¶17 The ALJ expresses concern in his report
that
To use the fund to compensate impacted
parties for personal injury and property
damage as a result of a release would likely
consume the allowed funds needed for the
remediation, thus leaving pollution in the
ground to affect others who would be
unable to receive compensation for their
personal injury and property damage
because they were affected by the same
release at a later time. This would result in
races to the courthouse to be the first to file
their claims for personal injury and propVol. 88— No. 1 — 1/14/2017
¶18 However, in Oklahoma, the judiciary, as
well as the executive branch, lack the power to
rewrite a statute merely because the legislation,
or a portion of the legislation, does not comport with their concept of prudent public policy. The Oklahoma Constitution provides:
The powers of the government of the
State of Oklahoma shall be divided into
three separate departments: The Legislative, Executive, and Judicial; and except as
provided in this Constitution, the Legislative, Executive, and Judicial departments
of government shall be separate and distinct, and neither shall exercise the powers
properly belonging to either of the others.
Okla. Const. art. 4, § 1. The Oklahoma Supreme
Court has stated:
In absence of a constitutional defect, we are
duty bound to give effect to legislative acts,
not to amend, repeal, or circumvent them.
We will not exercise authority not vested in
this Court by rewriting statutes merely
because the legislation does not comport
with our concept of prudent public policy.
Coates v. Fallin, 2013 OK 108, ¶ 2, 316 P.3d 924
(citations omitted). As even more recently
stated by the Oklahoma Supreme Court:
The nature of this Court’s inquiry is limited to constitutional validity, not policy. It
is not the place of this Court, or any court, to
concern itself with a statute’s propriety,
desirability, wisdom, or its practicality as a
working proposition. A court’s function,
when the constitutionality of a statute is
put at issue, is limited to a determination of
the validity or invalidity of the legislative
provision and a court’s function extends no
farther in our system of government.
Lee v. Bueno, 2016 OK 97, ¶ 8, _ P.3d _ (emphasis
added) (citations omitted).
¶19 The concerns expressed by the ALJ may
be legitimate; indeed, it appears such concerns
may be ever more pronounced now that the
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51
cap pertinent to this case has not been increased
for over ten years.6 Nevertheless, “[t]he fundamental rule of statutory construction” in this
case is to discern the intent of the Oklahoma
Legislature, not the intent of the OCC in its
rules and regulations,7 Cox v. Dawson, 1996 OK
11, ¶ 5, 911 P.2d 272, and we must refrain from
reading exceptions into a statute or imposing
requirements not mandated by the Legislature,
Cox v. State ex rel. Okla. Dep’t of Human Servs.,
2004 OK 17, ¶ 26, 87 P.3d 607.8 We conclude
reimbursement for actual physical damage and
medical injury is not limited to those damages
and injuries that occur as a result of remediation efforts, but extends to claims by eligible
persons for property damage or personal injury caused by an eligible release.
II. Additional Issues Presented Regarding
Interpretation of the Indemnity Program
¶20 In their reports the ALJ and the Referee
also appear to imply that those who receive or
are eligible for payment from some other state
or federal agency or other third-party payor,
including an insurance company, are ineligible
to receive reimbursement from the Indemnity
Fund. While this may be true up to the amount
received from the third-party payor or insurance company,9 the statute in question plainly
provides that when such payor “does not fully
compensate the eligible person,” the eligible
person “may seek compensation for the uncompensated amount”:
Except as otherwise provided by the
[Indemnity Program], a reimbursement
shall not be made to any eligible person
who has received or is eligible for payment
or reimbursement from any other state or
federal agency or other third party payor
for the corrective action taken or the damages or the injuries associated with a release. If
a state or federal agency or other third-party
payor does not fully compensate the eligible
person, then the eligible person may seek compensation for the uncompensated amount from
the Indemnity Fund.
17 O.S. 2011 § 356(G) (emphasis added).
¶21 The ALJ and Referee were also not persuaded that a final judgment and determination of actual damages in a civil action in a
state district court could control in a determination of actual damages for purposes of reimbursement from the Indemnity Fund, and they
expressed in their reports that actual damages
would need to be presented and proven before
52
the Administrator or ALJ regardless of damages determined in a civil action. However,
while various limitations are set forth in the
statute — for example, the Indemnity Fund is
not to be used to, among other things, “[p]ay
for punitive damages from any civil action
resulting from the eligible release,” id. § 356(I)
(3) — the statute noticeably does not contain a
limitation for non-punitive damages from a
civil action resulting from an eligible release.
This is consistent with the fact that “[a]lthough
the OCC has the authority of a court of record, it
has limited jurisdiction,” that “[a]ny action by
the OCC must be authorized by statute,” that
“private rights . . . lie within the purview of the
district court,” and the OCC, “although possessing many of the powers of a court of record, is
without the authority to entertain a suit for damages.” Grayhorse Energy, LLC v. Crawley Petroleum
Corp., 2010 OK CIV APP 145, ¶¶ 10, 12 & 13, 245
P.3d 1249 (citations omitted).10
¶22 Regardless, the OCC (and Administrator
of the Indemnity Fund) does not have discretion to ex nihilo deny a claim when confronted
with an application from an eligible person
who has suffered actual property damage or
personal injury as a result of an eligible release
and who is not fully compensated by a thirdparty payor. Instead, § 351(B) states that “any
person entitled to reimbursement pursuant to
the provisions of this act shall be reimbursed for
certain allowable costs in connection with such
corrective action, subject to the conditions
specified by this act.” (Emphasis added) (footnote omitted).
III. Reimbursement Cap Per Occurrence, and
Allegation of Multiple Occurrences
¶23 However, as indicated above, a cap of
$1.5 million “per occurrence” applies to the
circumstances of this case. Indeed, Appellants
admit that the amount of funds available for
reimbursement in this case, per occurrence, is
capped at $1.5 million. See also 17 O.S. 2011 §
356(H)(3) (“Reimbursements shall not exceed
… [$1.5 million] per occurrence[.]”). And
Appellants also admit that “[the OCC] has
already expended or encumbered all of the
funds available . . . in reimbursing costs of
investigation and remediation activities relating to the pollution associated with the former
[gasoline] station.”11 Because the funds available per occurrence in this case is capped at
$1.5 million, and because $1.5 million has
already been committed by the OCC in this
case, Appellants state on appeal that “[t]he
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existence of multiple releases . . . is critically
important[.]” Indeed, Appellants asserted
below that this case involves two, if not three,
occurrences. That is, Appellants sought to
prove that a second release occurred at a separate service station located across the road
from the gasoline station. Appellants also
sought to prove that the gasoline station itself
had actually experienced two or more occurrences.
¶24 Oklahoma Administrative Code § 165:271-2 defines “occurrence” as follows:
“Occurrence” means the release of a
PSTD regulated substance into the soil or
groundwater. Each PSTD regulated substance will be treated as one occurrence
regardless of the composition of the substance released. Separate occurrences of the
same PSTD regulated substance may be
allowed if evidence establishes the PSTD
regulated substance occurred in two different tank system locations, are separated by
time, or both.
“The Legislature may delegate rule making
authority to agencies, boards and commissions
to facilitate the administration of legislative
policy . . . .” Cox v. State ex rel. Okla. Dept. of
Human Servs., 2004 OK 17, ¶ 22 (footnote omitted). As quoted above, “[t]he [OCC] has jurisdiction over the [Indemnity Fund] and [Indemnity]
Program.” McPherson, 2010 OK 31, ¶ 2. Title 17
O.S. 2011 § 350(B) provides, in pertinent part,
that the OCC
shall maintain, operate and administer the
[Indemnity Program] cooperatively with
the regulatory program implementing the
regulatory responsibilities of the [OCC]
pursuant to the Oklahoma Storage Tank
Regulation Act or any other division of the
[OCC]. Regulatory responsibilities of the
[OCC] shall include, but not be limited to,
regulatory compliance activities, enforcement of rules promulgated to implement
regulatory programs, technical review,
development and approval of corrective
action plans and determinations that remediation of contaminated sites is complete.
(Footnote omitted.)
¶25 “Statutory construction by agencies
charged with the law’s enforcement is given
persuasive effect especially when made shortly
after the statute’s enactment.” Cox, 2004 OK 17,
¶ 22 (footnote omitted). “Once administrative
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rules are promulgated and successive legislative sessions are convened with no action to
reject a rule, the Legislature’s silence is regarded as proof of the lawmakers’ consent,” and
“[t]he Legislature is deemed to have adopted
an administrative construction when it amends
or re-enacts a relevant statute without overriding the administratively-imposed construction.” Id. ¶ 24 (footnotes omitted). The Legislature has amended the statute in question without overriding the administratively-imposed
construction of the term “occurrence,” and we
conclude the definition set forth in § 165:27-1-2
is not unreasonable or inconsistent with the
statute.12
¶26 In addition,
Great weight is to be accorded the expertise
of an administrative agency, and a presumption of validity attaches to the exercise of
expertise when the administrative agency is
reviewed by a court. A court should not
substitute its own judgment for that of an
agency, particularly in the area of expertise
which the agency supervises.
Toxic Waste Impact Grp., Inc. v. Leavitt, 1988 OK
20, ¶ 12, 755 P.2d 626 (footnote omitted). “It is
for the [OCC] to weigh conflicting expert testimony. Because Commission decisions often
involve complex issues of . . . engineering[] and
other special knowledge, a presumption of correctness accompanies the [OCC’s] findings in
matters it frequently adjudicates and in which
it possesses expertise.” Pub. Serv. Co. of Okla. v.
State ex rel. Okla. Corp. Comm’n, 2005 OK 47, ¶
8, 115 P.3d 861 (footnote omitted).
¶27 The ALJ stated it was not persuaded by
the evidence presented by Appellants in support of their assertion that at least one additional “confirmed release case” should be
opened, and the ALJ instead relied upon the
evidence and testimony of the OCC technical
staff in finding that additional confirmed
release cases are unwarranted. As set forth
above, the Oklahoma Constitution forbids this
Court from substituting its judgment upon disputed factual determinations for that of the
OCC, and restricts this Court to a determination of whether the factual determinations of
the OCC are supported by substantial evidence. Okla. Const. art. 9, § 20; Sundown Energy, 2010 OK 88, ¶ 9. This determination “does
not entail a comparison of the parties’ evidence
to determine that which is most convincing”;
instead, it only entails determining whether
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53
the evidence supportive of the order furnishes
“a substantial basis of facts from which the
issue could be reasonably resolved.” Sundown
Energy, ¶ 9 (citations omitted).
¶28 Substantial evidence does exist in support of the OCC’s determination that only one
occurrence existed in this case. For example, as
summarized in the ALJ’s report, David Poulsen,
who works for the Petroleum Storage Tank
Division (PSTD) as an Environmental Analyst,
testified that “each PSTD staff member on the
review team separately came to the same conclusion[:] no sufficient evidence was present to
open a confirmed release case on the [service
station] site.” Another witness, Salim Douglah,
testified “that none of the 6 monitoring wells
on the [service station] site showed contamination indicative of a confirmed release[.]” Douglah also testified there was no support “to
indicate or substantiate a second occurrence”
at the gasoline station.
¶29 Appellants point to the fact that three of
their witnesses, Joe Foster, a geologist employed
by Enercon Services — the environmental consulting firm that conducted the investigation of
the gasoline station site — Dr. Robert Knox,
and Jerry Black testified that there were multiple releases from the gasoline station site and
one release from the service station across the
road. However, this argument is unavailing
because, on appeal, we are limited to determining whether the OCC’s factual determinations
are supported by substantial evidence. Appellants also assert the ALJ “completely ignored
certain evidence that was unrefuted by the
[OCC] staff[.]” However, Appellants, at this
point in their argument, do not point to any
specific evidence allegedly overlooked by the
ALJ, nor will this Court assume from the contents of the summary of the evidence in the
ALJ’s report that certain evidence was “completely ignored.” Clearly, substantial evidence
exists in support of the OCC’s determination
that only one occurrence existed in this case.
IV. Allegations of Bias and Application of an
Unfair Burden of Proof by the ALJ
¶30 Appellants argue on appeal that the ALJ
failed to function like a judge in a court of
record when conducting the adjudicative proceedings, or that he applied an “intolerable
and unfair burden on [Appellants],” with
regard to the issue of whether a second occurrence should be found to exist and a second
confirmed release case opened. Appellants
54
base their argument on the following language
contained in the final paragraph of the ALJ’s
report: “This ALJ is not going to substitute his
knowledge concerning whether or not a suspicion of release case should be elevated to a confirmed release case for that of the technical staff.
This is the province of the professional Technical
staff and their experience and training.”
¶31 We agree with Appellants that this language, especially when viewed out of context,
raises obvious concerns. If the ALJ never questions the opinions of the technical staff of the
OCC, then the ALJ is obviously failing in his
duty to weigh the evidence and is placing an
impossible burden on the applicants, especially in a case like the present one where the
applicants presented the testimony of multiple
witnesses and experts.13 However, surrounding
the two above-quoted sentences in the final
paragraph of the ALJ’s report, the following
statements are made by the ALJ: that “[t]he
evidence furnished to the Court was sufficient
to support the Technical Staff’s position regarding” whether a second confirmed release case
should be opened for the service station site;
that “[t]he technical staff explained in great
detail their reason for not opening another confirmed release case”; and that the ALJ “was not
persuaded by the testimony” of at least one of
Appellants’ key expert witnesses on this issue.
¶32 Furthermore, as stated by the Referee in
her report, the PSTD is granted some discretion
when determining whether to initiate a confirmed release:
The [OCC’s] rules on remediation of
petroleum storage tank releases defined
“confirmed release” as a “release of petroleum from a regulated storage tank system
resulting in levels of chemicals of concern
in native soils and/or groundwater that
exceed state action levels to which a PSTD
case number is assigned and further corrective action is required.” OCC-OAC
165:29-1-11. PSTD Staff testified as to the
review invested by Staff in the suspicion of
release case concerning the . . . facility. An
initiation of a confirmed release case is discretionary. OCC-OAC 165:25-3-8(c) states
that certain “[l]evels of chemical constituent concentrations . . . may confirm a
release . . . .” See also OCC-OAC 165:29-33(b) which states: “[w]hen a confirmed
release is confirmed a case may be activated.” Both of these rules include permissive language rather than mandatory
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Vol. 88— No. 1 — 1/14/2017
language. The method is left to the PSTD
Staff to determine if a confirmed release
case should be opened. The construction
and application of laws and rules by the
entity that is responsible for their administration is given deference.14
While the PSTD’s discretion in this regard is
not unlimited — and we make no determination regarding the precise contours of that discretion — the existence of some discretion on
the part of the OCC “technical staff” on the
issue of whether to open a new confirmed
release case15 must be taken into account when
interpreting the complained-of statements.
¶33 Reading the complained-of statements in
light of the OCC regulations granting the technical staff some degree of discretion, and reading the statements in the context of the additional statements made in the final paragraph
of the ALJ’s report, we conclude Appellants’
argument that the ALJ was biased or applied
an “intolerable and unfair burden,” and that
the Order must, on this basis, be reversed, is
unpersuasive.
CONCLUSION
¶34 Although certain statements made in the
report of the ALJ in this case are inconsistent
with the plain meaning of the controlling statutes, Appellants admit the funds available per
occurrence in this case is capped at $1.5 million, and they admit that $1.5 million has
already been reimbursed or committed by the
OCC. We further conclude that substantial evidence exists in support of the OCC’s determination that only one occurrence exists in this
case. Finally, we conclude Appellants’ argument that the ALJ was biased or applied an
“intolerable and unfair burden” is unpersuasive. Consequently, we affirm.
¶35 AFFIRMED.
THORNBRUGH, P.J., and RAPP, J., concur.
DEBORAH B. BARNES, JUDGE:
1. Regarding the deductible which impacted parties are not subject
to, “[f]or releases that occurred prior to June 4, 2004,” for example,
“eligible persons shall pay the five-thousand-dollar deductible as a
copayment which may be paid in installments.” Id. § 356(H)(1).
2. We note that Oklahoma Administrative Code § 165:27-3-2 (2005)
states, in pertinent part, as follows:
An eligible person can be any of the following who has costs
incurred as the result of a confirmed eligible release from a petroleum storage tank system, who has satisfied requirements for
PSTD eligibility, and has been issued an Indemnity Fund Eligibility Letter by the PSTD Director.
....
(2) An owner whose property has been impacted by a release
from an on-site or off-site petroleum storage tank system that
Vol. 88— No. 1 — 1/14/2017
was never owned or operated by the property owner and has
no responsibility for the release.
....
(4) Adjacent property owner or impacted party.
3. (Emphasis added.)
4. (Emphasis omitted.)
5. (Emphasis added.)
6. The cap applicable to this case, “per occurrence,” is $1.5 million.
The cap was increased by the Legislature from $1 million to $1.5 million by amendment to § 356(H)(3)(a) effective November 1, 2005.
7. We note that the ALJ’s interpretation appears to be consistent
with at least some of the pertinent rules and regulations in the Oklahoma Administrative Code. For example, § 165:27-1-2 defines “actual
physical damage” as “those damages to real and personal property
directly related to corrective action performed on a release of petroleum
from a Commission regulated storage tank system.” (Emphasis
added.) We further note that § 165:27-9-4 provides that “[i]f any part of
this Chapter is adjudged by a court of competent jurisdiction to be
invalid for any reason or in any manner, the remainder of this Chapter
shall not be affected and shall remain in full force and effect.”
8. “Under our case law, we hesitate to construe any statute that
appears clear and unambiguous. Only when the circumstances make it
unmistakable that there has been a legislative oversight will the Court
intervene to clarify statutory enactments.” Dawson, 1996 OK 11, ¶ 6.
This Court “may not read an exception into a statute not made by the
Legislature,” Oglesby v. Liberty Mut. Ins. Co., 1992 OK 61, ¶ 13, 832 P.2d
834; that is, “[t]his Court does not read exceptions into a statute nor
may we impose requirements not mandated by the Legislature,” Cox v.
State ex rel. Okla. Dep’t of Human Servs., 2004 OK 17, ¶ 26 (footnotes
omitted).
9. The statute also provides that “[t]he right to apply for reimbursement and the receipt of reimbursement does not limit the liability of an
owner or operator for damages, injuries or the costs incurred as a
result of an eligible release.” 17 O.S. 2011 § 356(J).
10. Of course, further inquiry may be necessary where it is difficult
or impossible to determine from the judgment roll the actual physical
damages and medical injury incurred as a result of an eligible release.
This appears to be the stance taken by the Referee in her report.
11. Br.-in-chief at 9. See also the order of the ALJ, p. 11 (“[T]he entire
amount of funds available has been committed to cleaning up this spill
and there are simply no funds to give to [Appellants] to provide the
requested relief, thus the requested relief is moot.”); Br.-in-chief at 16
(“In this instance, the costs of the investigation . . . and the remedial
actions . . . consumed the entire amount . . . .”).
We note that it is perhaps not particularly surprising that all of the
funds available have already been expended or encumbered in this
case in which the above-described explosion occurred in 2007, yet
Appellants did not file an application for reimbursement from the
Indemnity Fund until 2013. The expressed legislative purpose set forth in
the Indemnity Program is to avoid “long periods” of delay in the remediation of petroleum spills, leaks and other releases. See 17 O.S. § 351(A).
12. It might nevertheless be argued that the definition of “occurrence” set forth in § 165:27-1-2 remains vague and in need of further
interpretation. In this case, in particular, it might be asked whether a
leak extending over a long period of time may constitute more than
one occurrence. “Administrative rules, like statutes, are given a sensible construction bearing in mind the evils intended to be avoided.”
Cox, 2004 OK 17, ¶ 22 (footnote omitted). Regarding leaks, we conclude
the only sensible construction of the definition of occurrence set forth
in § 165:27-1-2 is that two or more leaks occur from the same tank
system only if the leaks are “separated by time,” as the rule plainly
states. Thus, a continuous leak from the same tank system — i.e., a leak
not “separated by time” from a preceding or subsequent leak — constitutes only one occurrence even if the leak extends over a period of
time. We note that this interpretation is consistent with 17 O.S. 2011 §
351(A)(2), which reveals the Legislature’s intent to treat individual
leaks, spills, and other releases of petroleum, as single occurrences: “[s]
pills, leaks and other releases of petroleum from . . . storage tank systems have occurred, are occurring and will continue to occur[.]” In
addition, the alternative of setting an arbitrary marker, such as one
day, month or year, such that every day, month or year of a continuous
leak constitutes an occurrence, would lead to absurd results.
13. It has been stated, for example, that “[w]hen the [OCC] acts in
an adjudicative capacity it functions much like a court,” Harry R. Carlile Trust v. Cotton Petroleum Corp., 1986 OK 16, ¶ 10, 732 P.2d 438, and
when the OCC gives an order such as the one appealed, “it acts in its
adjudicative capacity rather than its rulemaking capacity”; thus, “[t]he
minimum norms of Federal and State due process must govern review
of the Order,” Amoco Prod. Co. v. Corp. Comm’n, 1986 OK CIV APP 16,
¶ 20, 751 P.2d 203 (approved for publication by the Oklahoma Supreme
Court) (footnote omitted).
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55
14. We note that after the Referee’s report was issued in July 2015,
the OCC regulations were amended effective August 27, 2015, and
August 25, 2016.
15. The existence of some amount of discretion is consistent with the
open-ended definition of “eligible release” set forth in 17 O.S. § 352(8): “a
release for which allowable costs, as determined by the Administrator,
are reimbursable to or on behalf of an eligible person[.]”
2016 OK CIV APP 79
JAMES LLOYD BOGDANICH SANDERS,
an individual, and LEE CLACK, individually
and as Personal representative of the
ESTATE OF GEORGE R. BOGDANICH,
Plaintiffs/Appellants, vs. RIVER PARKS
AUTHORITY, an Oklahoma Public Trust
Authority, Defendant/Appellee.
Case No. 114,823. November 18, 2016
APPEAL FROM THE DISTRICT COURT OF
TULSA COUNTY, OKLAHOMA
HONORABLE DANA LYNN KUEHN,
TRIAL JUDGE
AFFIRMED
William W. O’Connor, Margo E. Shipley, NEWTON, O’CONNOR, TURNER & KETCHUM,
PC, Tulsa, Oklahoma, for Plaintiffs/Appellants
David L. Weatherford, BIRMINGHAM, MORLEY, WEATHERFORD & PRIORE, P.A., Tulsa,
Oklahoma, for Defendant/Appellee
JERRY L. GOODMAN, CHIEF JUDGE:
¶1 James Lloyd Bogdanich Sanders, an individual, and Lee Clack, individually and as
personal representative of the Estate of George
R. Bogdanich (collectively “Plaintiffs”), appeal
a February 19, 2016, order granting the River
Parks Authority’s (RPA) motion for summary
judgment. Based on our review of the record
and applicable law, we affirm.
BACKGROUND
¶2 On May 31, 2011, Reverend George R.
Bogdanich (Bogdanich) was walking southbound on the River Parks trail just west of 24th
Street and Riverside Drive in Tulsa, Oklahoma,
when he was struck by a young boy riding a
bicycle. Bogdanich was transferred to St. John’s
Hospital where he died on June 8, 2011, from
injuries sustained in the accident.
¶3 Plaintiffs, Bogdanich’s son and daughter,
subsequently brought suit against RPA on May
10, 2012, alleging negligent design of the trails
where the accident occurred, inadequate warning signage, and insufficient supervision of the
River Parks trail system.1 On July 21, 2015, RPA
56
filed a motion for summary judgment, asserting it was a public trust and was entitled to the
protections of the Oklahoma Governmental
Tort Claims Act. RPA asserted all claims related
to faulty design or construction were barred
because such work was performed by independent contractors. It further asserted all of Plaintiffs’ claims were barred by 76 O.S.2011 and
Supp. 2013, § 10.1, the Recreational Land Use
Act (RLUA).
¶4 Plaintiffs responded, denying RPA’s assertions. Plaintiffs contended the faulty design of
the River Park trails was caused by RPA, not an
independent contractor or consultant, noting
RPA was required by contract to inspect and
approve all design and work. With respect to
the RLUA, Plaintiffs asserted RPA was not
entitled to immunity because it charged fees
for entering and using the River Park trail system, citing 76 O.S.2011 and Supp. 2013, §
10.1(D)(1).
¶5 By order entered on December 4, 2015, the
trial court directed the parties to further brief
the court on the exception to immunity under
the RLUA for fees charged, citing Ducey v. U.S.,
713 F.2d 504 (9th Cir. 1983), as cited in Mustain
v. GRDA, 2003 OK 43, 68 P.3d 991. After additional briefing by the parties, the trial court
granted RPA’s motion for summary judgment
by order entered on February 19, 2016. Plaintiffs appeal.
STANDARD OF REVIEW
¶6 Summary judgment is properly granted
“when the pleadings, affidavits, depositions,
admissions or other evidentiary materials
establish that there is no genuine issue as to
any material fact and that the moving party is
entitled to judgment as a matter of law.” Davis
v. Leitner, 1989 OK 146, ¶ 9, 782 P.2d 924, 926. In
reviewing a grant of summary judgment, we
must view all inferences and conclusions to be
drawn from the evidentiary materials in a light
most favorable to the party opposing the
motion. Id. An appeal from an order granting
summary judgment is subject to de novo
review. Shull v. Reid, 2011 OK 72, ¶ 3, 258 P.3d
521, 523. “In its re-examination of the trial tribunal’s legal rulings an appellate court exercises plenary, independent and nondeferential
authority.” Bronson Trailers & Trucks v. Newman,
2006 OK 46, ¶ 5, 139 P.3d 885, 889.
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Vol. 88— No. 1 — 1/14/2017
ANALYSIS
¶7 RPA asserts it has complete immunity
from liability on all of Plaintiffs’ claims pursuant to the RLUA. Title 76 O.S.2011 and Supp.
2013, § 10.1 provides as follows:2
A. 1. The purpose of this section is to encourage landowners to make land available to the public for outdoor recreational purposes by limiting their liability to persons entering upon and using
such land and to third persons who may
be damaged by the acts or omissions of
persons going upon these lands.
…
B. An owner who provides the public with
land for outdoor recreational purposes
owes no duty of care to keep the land
safe for entry or use by others, or to give
warning to persons entering or using the
land of any hazardous conditions, structures, or activities.
C. 1. Except as otherwise provided by this
section, an owner who provides the
public with land for outdoor recreational purposes shall not:
a. be presumed to extend any assurance
that the land is safe for any purpose,
b. incur any duty of care toward a person who enters or uses the land, or
c. assume any liability or responsibility
for any injury to persons or property
caused by the act or omission of a person who enters or uses the land….
However, § 10.1(D) provides an exception to
immunity:
This section shall not apply if:
1. Any charge is made or is usually made
for entering or using any part of the
land; or
2. Any commercial or other activity for
profit directly related to the use is conducted on any part of the land.
“Charge” is defined as:
the admission price or fee asked in return
for invitation or permission to enter or go
upon the land. The term “charge” shall not
include a license or permit fee imposed by
a governmental entity for the purpose of
regulating the use of land, a water or park
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area, or lake reservation and shall not
include hunting, fishing, boating, and other
license and permit fees.
Id. at § 10.1(A)(2)(d).
¶8 In the present case, Plaintiffs note that
Oklahoma’s recreational land use statute provides that recreational use immunity shall not
apply if “[a]ny charge is made or is usually
made for entering or using any part of the
land” or if “[a]ny commercial or other activity
for profit directly related to the use is conducted on any part of the land.” § 10.1(D)(1) and
(2). Thus, Plaintiffs assert the exception does
not require an injured plaintiff himself to have
paid a fee to enter or use the land. Rather, the
mere fact a landowner charges any fee to any
person or conducts any commercial or other
activity for profit is sufficient to preclude
immunity under the RLUA. Plaintiffs note RPA
charges park usage fees to the public to rent
specific areas of the park, to participate in
events which make use of the River Parks trail
system, and to engage in commercial filming
and still photography.3 In addition, Plaintiffs
state RPA leases a portion of land to Swamphouse Partners, LLC, which operates Blue Rose
Café and Elwoods, for an annual rental fee of
$21,000.00 and a percentage of gross revenues
over $1 million. Plaintiffs contend the collection of fees and the lease of land directly relate
to the public’s usage of the River Parks and
trail system. Thus, Plaintiffs maintain the
RLUA is inapplicable and RPA is not immune
from suit.
¶9 RPA disagrees, asserting it is undisputed
that there is no charge for the use of the trail
system and that all commercial activity related
to RPA is totally unrelated to the free usage of
the trail. Thus, there is no nexus between the
free usage of the trail system, which Bogdanich
was using on the day the accident occurred,
and the other commercial activity that may
occur in the park system.
¶10 The Oklahoma Supreme Court addressed
the RLUA in Hughey v. Grand River Dam Authority, 1995 OK 56, 897 P.2d 1138. In Hughey, the
plaintiffs in a wrongful death action alleged
the decedents drowned after their boat struck
an abandoned railroad bridge on Grand Lake
at night. They alleged the Authority: (1) had
knowledge of the bridge’s dangerous condition or location; and (2) negligently failed to
provide lights or warning signs in the vicinity
of the hazard’s location. The trial court granted
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57
the Authority’s motion for summary judgment
under both the Tort Claims Act and the RLUA.
On appeal, the Supreme Court held that the
RLUA applied with equal force to government
entities and private landowners. Id. at ¶ 5, at
1142. Because the plaintiffs could not demonstrate that the Authority was exempt from
immunity under the RLUA, the Supreme Court
held that summary judgment was proper. The
Court specifically noted that the only commercial activity established by the record was the
authority’s generation of electricity, a use without “any profit-related nexus to the admitted
public’s presence upon the premises.” Id. at ¶
6, at 1143 (emphasis omitted). “The plain reading of the RLUA indicates that the type of commercial activity which takes a landowner out
of the purview of immunity must be connected
with the invitees’ commercial use of the lands
or waters.” Id.
¶11 Subsequently, in Mustain v. Grand River
Dam Authority, 2003 OK 43, 68 P.3d 991, the
Supreme Court again held that the RLUA’s
exception to immunity did not apply. The
plaintiff, who had been injured when her water
craft struck an abandoned bridge’s support
structure in Grand Lake, argued that the
Authority engaged in commercial activities
through its charging of dock permit fees. The
Supreme Court disagreed, noting the fees were
paid solely by dock owners, not by the public:
“The Authority’s assessment of commercialand private-dock permit fees is neither based
upon nor connected to the public’s admission
to the lake or park premises.” Id. at ¶ 15, at 996.
The Court distinguished Boyd v. U.S. ex rel. U.S.
Army Corps of Engineers, 1992 OK 51, 830 P.2d
577, where the Corps charged fees for lake
activities and exacted a flat rental fee for concessions. Mustain, at ¶¶ 9-10, at 995.
¶12 The Mustain Court cited Ducey v. United
States, 713 F.2d 504 (9th Cir. 1983):4
Our holding in Boyd, supra note 16 at ¶ 2 at
578, is consistent with those in other jurisdictions where a governmental entity’s
agreement with a concessioner requires it
to pay a fixed percentage of all revenues
from operations. In Ducey v. United States,
713 F.2d 504 (1983), the Ninth Circuit differentiated the entrepreneur-type landowner, whose land is open for business
reasons, from the landowner whom the
statute encourages to open land on a gratuitous basis by the promise of immunity.
Ducey at 511 n.8; See also, Goodman v. Juniper
58
Springs Canoe Rentals & Recreation, Inc., 983
F.Supp. 1384, 1387 (1997).
Mustain, 2003 OK 43, at ¶ 10 fn. 20, 68 P.3d at
995 fn. 20. Because the Supreme Court perceived “no commercial or other for-profit
nexus” between the Authority’s collection of
dock-permit fees and the admitted public’s
access to the lake, it held the Authority was
immune from suit. Id. at ¶¶ 17, 25, at 997, 1000.
¶13 Accordingly, the RLUA does not prohibit
the RPA from engaging in commercial or other
for-profit activity. Rather, § 10.1(D) removes
the immunity protection “only when the forprofit activities are connected to 1) the admitted public’s presence upon the premises, or 2)
its free use of the locus delicti.” Id. at ¶ 14, at 996.
Thus, the type of commercial activity that takes
a landowner out of immunity must be connected with the invitees’ recreational use of the
land. Commercial activity unrelated to the land
use by the invited guests is not a bar to immunity. Id. at ¶ 11, at 995.
¶14 The RPA’s fees charged to restaurants
licensed to operate in the River Parks are not
“directly related to the [public’s] use of the
River Parks trails on which Bogdanich was
walking at the time of his death. § 10.1(D)(2).
Likewise unrelated to public use of the River
Parks trails are the fees charged for exclusive
use of the 14 acre River West Festival Park or
commercial filming and still photography.
However, there is a relationship between fees
charged to event organizers whose participants
use the River Parks trail system during runs,
walks and bike rides. As instructed by the
Supreme Court’s interpretation of 76 O.S.2011,
§ 10.1 in Mustain, we hold that this relationship
is insufficient to deprive the RPA of tort immunity in this case. According to the RPA’s Fee
Schedule & Rental Rates, event organizers do
not pay for exclusive use of the River Parks’
trail system. The non-participant public is not
excluded from the trail system during the
event. More importantly, the non-participant
public’s “use of the [trail system] for recreational purposes [has] no inevitable connection” to the fees charged to event organizers.
Mustain, 2003 OK 43, at ¶ 15, at 996. Participants in these events do not pay for exclusive
access to the trail system during the event.
Rather, they pay for the right to be timed,
scored, and to receive prizes unlike the nonparticipant public who are also using the trail
system during the event. Accordingly, the trial
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court’s February 19, 2016, order granting RPA
summary judgment was correct and is affirmed.
¶15 AFFIRMED.
WISEMAN, P.J., FISCHER, J., concur.
JERRY L. GOODMAN, CHIEF JUDGE:
1. Plaintiffs further filed suit against Nathan Deford and the minor
child who struck Bogdanich. On May 27, 2014, a notice of dismissal
with prejudice was filed dismissing these defendants.
2. Previously codified at 2 O.S. § 1301 et seq.
3. To use the River West Festival Park, RPA charges $750.00 for one
day, and $250.00 for each additional day. RPA further charges a basic
fee of $90.00 per day for exclusive use of a specific area of River Parks,
a $2 participant fee for all events where participants use the River
Parks trail system, such as runs, walks and bike rides, and the right to
charge additional fees on a case by case basis. Finally, the RPA charges
$75.00 for commercial filming per event and still photography is
charged by the duration of the pass: a 7-day pass is $40.00, a 6-month
pass is $75.00, and an annual pass costs $125.00.
4. In the present case, the trial court requested the parties brief the
court on Ducey. In Ducey, the Ninth Circuit Court of Appeals addressed
whether the government was immune from tort liability under a
Nevada recreational use statute or whether a “consideration exception” precluded immunity.
In Ducey, three park users were killed in a flash flood while camping and boating in the Lake Mead National Recreational Area in
Nevada. The National Park Service (NPS) operated the recreational
area. Eldorado Canyon Resorts, Inc. (ECR), a concessioner of the NPS,
operated a café/store, boat slips, fueling, inter alia. ECR was required
to remit to the United States ¾% of its gross annual receipts from sales
at the café/store and from revenue generated by boat slip and trailer
space.
On the day in question, one of the park users had paid a fee
directly to the NPS to gain entrance to or to engage in recreational
activities on the public lands in the recreational area. Two of the users
had paid rental fees to ECR for a boat slip, one user had rented a
trailer slip, and all three had shopped at the café/store.
The court rejected the government’s interpretation that the consideration exception was inapplicable because the users made no direct
payments for permission to enter and, even if such consideration was
tendered, it was not tendered to the United States. The court found the
language of the consideration exception suggested a broad reading of
the statute; the exception was not limited in narrow terms to “fee” or
“charge” but rather used the far more encompassing term of “consideration.” “Confining the term ‘consideration’ … solely to direct payments of entrance fees or charges would extend the immunity of the
statute beyond those persons whom the statutory policy would protect.” Id. at 511. The court further found the statute did not specify to
whom consideration must be tendered. The court held that “consideration must be tendered directly or indirectly to a person who has the
power to grant or deny permission to participate in recreational activities. Since the concession agreement did not give ECR the power to
deny permission to recreate in Eldorado Canyon, the exception is
applicable only if consideration was tendered, directly or indirectly, to
the United States in return for permission to recreate in Eldorado Canyon.” Id. at 513. The court emphasized that the exception serves to
distinguish “the entrepreneur-landowner whose land is open for business reasons” from “the landowner whom the statute encourages to
open his land on a gratuitous basis by the promise of immunity.” Id. at
514. Thus, the court concluded the consideration exception applied.
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59
Disposition of Cases
Other Than by Published Opinion
COURT OF CRIMINAL APPEALS
Wednesday, December 14, 2016
F-2015-525 — Robert Andrew Whitt, Appellant, was tried by jury for the crime of First
Degree Murder in Case No. CF-2013-112 in the
District Court of Tulsa County. The jury returned a verdict of guilty and recommended as
punishment life imprisonment. The trial court
sentenced accordingly. From this judgment
and sentence Robert Andrew Whitt has perfected his appeal. Judgment and Sentence
AFFIRMED; alternative Application for Evidentiary Hearing on Sixth Amendment Claims
DENIED. Opinion by: Smith, P.J.; Lumpkin,
V.P.J., concur in results; Johnson, J., concur;
Lewis, J., concur; Hudson, J., concur.
F-2015-1005 — Jordan Scott Barton, Appellant, was tried by jury for the crimes of Count
1 - Domestic Abuse by Strangulation, Count 3
- Interfering with an Emergency Telephone
Call and Count 4 - Threatening an Act of Violence in Case No. CF-2012-4901 in the District
Court of Tulsa County. The jury returned a
verdict of guilty and recommended as punishment one year imprisonment on Count 1 and a
$500 fine on each of Counts 3 and 4. The trial
court sentenced accordingly, with credit given
to Appellant for time served pending trial.
From this judgment and sentence Jordan Scott
Barton has perfected his appeal. AFFIRMED.
Opinion by: Smith, P.J.; Lumpkin, V.P.J.,concur;
Johnson, J., concur; Lewis, J., concur; Hudson,
J., concur.
Thursday, December 15, 2016
F-2015-830 — Miguel Angel Chavira, Appellant, was tried by jury for the crimes of First
Degree Felony Murder (Count 1) and Robbery
with a Firearm (Count 2) in Case No. CF-20114312 in the District Court of Tulsa County. The
jury returned a verdict of guilty and assessed
punishment at life imprisonment on Count 1
and twenty years imprisonment on Count 2. The
Honorable Doug Drummond, who presided at
trial, found that the robbery count merged with
the felony murder count and imposed a sentence of life imprisonment. From this judgment
and sentence Miguel Angel Chavira has per60
fected his appeal. The Judgment and Sentence of
the District Court is AFFIRMED. Opinion by:
Johnson, J.; Smith, P.J., concurs; Lumpkin, V.P.J.,
concurs; Lewis, J., concurs; Hudson, J., concurs.
S-2015-1067 — Appellee, Chad Dewayne
Henry, was charged with Count 1: Robbery by
Two or More Persons, After Former Conviction
of Two or More Felonies; Count 2: Maiming,
After Former Conviction of Two or More Felonies; and Count 3: Placing Bodily Fluids Upon
a Government Employee, After Former Conviction of Two or More Felonies, in the District
Court of Oklahoma County, Case No. CF-20136764. Appellee was bound over at preliminary
hearing on Counts 1 and 3 but the magistrate
demurred out Count 2 for insufficient evidence. After preliminary hearing, Appellee’s
case was assigned to the Honorable Cindy H.
Truong, District Judge, and district court proceedings commenced. Appellee did not file a
written motion to quash for insufficient evidence at any point in the district court proceedings. Approximately twenty-two months later,
Appellee’s case was transferred for jury trial to
the Honorable Donald L. Deason, District Judge.
Voir dire commenced on November 2, 2015. At
the beginning of the second day of trial (the
jury had not yet been sworn), Judge Deason
sustained Appellee’s oral motion to quash the
Count 1 charge of conjoint robbery for insufficient evidence and dismissed the venire panel
in light of the prosecutor’s statement that he
intended to appeal. Appellant, the State of
Oklahoma, now appeals. The District Court’s
order granting the Motion to Quash is REVERSED AND VACATED and the case is
REMANDED to the District Court for proceedings not inconsistent with this opinion. Opinion by: Hudson, J.; Smith, P.J., Concurs in
Results; Lumpkin, V.P.J., Concurs in Results;
Johnson, J., Concurs in Results; Lewis, J., Concurs in Results.
RE-2015-1016 — In the District Court of
Oklahoma County, Case No. CF-2014-4190,
Dario P. Barnes, Appellant, while represented
by counsel, entered a plea of guilty to Child
Abuse. On October 23, 2014, the Honorable
Susan K. Johnson, Special Judge, sentenced
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Vol. 88— No. 1 — 1/14/2017
Appellant in accordance with a plea agreement
to five (5) years imprisonment, with all but the
first sixty (60) days of that term suspended
under written conditions of probation. On
November 9, 2015, Ray C. Elliott, District
Judge, found Appellant violated his probation
and revoked the suspension order in full.
Appellant appeals the final order of revocation.
AFFIRMED. Opinion by: Johnson, J.; Smith,
P.J., concurs; Lumpkin, V.P.J., concurs; Lewis, J.,
concurs; Hudson, J., concurs.
Friday, December 16, 2016
F-2016-59 — Dustin Cain Buffalo, Appellant,
was tried by jury for the crimes of Possession
of a Controlled Dangerous Substance, After
Former Conviction of Two or More Felonies
(Count 1), Carrying a Dangerous Weapon
(Count 2), and Driving Without a Driver’s
License (Count 3) in Case No. CF-2014-477 in
the District Court of Garfield County. The jury
returned a verdict of guilty and assessed punishment at fifteen years imprisonment on
Count 1, and imprisonment for one day on each
of Counts 2 and 3. The trial court sentenced
accordingly and ordered the sentences to be
served concurrently. From this judgment and
sentence Dustin Cain Buffalo has perfected his
appeal. The Judgment and Sentence of the District Court is AFFIRMED. Opinion by: Johnson,
J.; Smith, P.J., concurs; Lumpkin, V.P.J., concurs;
Lewis, J., concurs; Hudson, J., concurs.
C-2016-548 — Tara Beth Miller, Petitioner,
entered a negotiated plea in the District Court
of Washita County to the crimes of Distribution
of a Controlled Dangerous Substance in Case
No. CF-2013-95; Assault and Battery with a
Dangerous Weapon in Case No. CF-2013-138;
and in Case No.CF-2014-9, Possession of a
Controlled Dangerous Substance (Count 1)
and Unlawful Possession of Drug Paraphernalia (Count 2). The Honorable Christopher S.
Kelly, Associate District Judge, accepted her
plea and, pursuant to the plea agreement,
placed Miller in the Washita/Custer County
Drug Court Program. The State filed a petition
to terminate Miller’s drug court participation
and sentence her in all three cases. The district
court held a hearing on June 2, 2016, terminated Miller from the drug court program and
sentenced her in Case No. CF-13-95 to fifteen
years imprisonment and a $100.00 fine; in Case
No. CF-13-138 to ten years imprisonment and a
$100.00 fine; and in Case No. CF-14-9 to ten
years imprisonment and a $100.00 fine on
Count 1 and one year in the County Jail and a
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$100.00 fine on Count 2. The court ordered the
sentences to be served concurrently and also
assessed various costs and fees on each of the
three cases. Miller filed a timely motion to
withdraw her plea in all three cases that the
district court denied following the prescribed
hearing. From the denial of that motion Miller
appeals. The Petition for a Writ of Certiorari is
DENIED. The Judgment and Sentence of the
District Court is AFFIRMED. Opinion by: Johnson, J.; Smith, P.J., concurs; Lumpkin, V.P.J., concurs; Lewis, J., concurs; Hudson, J., concurs.
F-2015-1042 — Appellant Billy Gene Gray, Jr.
was tried by jury and convicted of Conspiracy
to Distribute a Controlled Dangerous Substance (Methamphetamine) (Count I) and Possession of a Controlled Dangerous Substance
with Intent to Distribute (Count II), both counts
After Former Conviction of Two or More Felonies in the District Court of Garvin County,
Case No. CF-2013-347. The jury recommended
as punishment forty (40) years imprisonment
in each count. The trial court sentenced accordingly, ordering the sentences to run consecutively. From this judgment and sentence Billy
Gene Gray, Jr. has perfected his appeal. The
Judgment and Sentences are AFFIRMED.
Opinion by: Lumpkin, V.P.J.; Smith, P.J., Concur; Johnson, J., Concur; Lewis, J., Concur;
Hudson, J., Concur.
Tuesday, December 20, 2016
C-2015-1017 — Clayton Charles Hackney,
Petitioner pled no contest to Counts I and II,
Larceny of an Automobile; Counts III, V and
VIII - Conspiracy to Commit a Felony; Count
IV - Burglary in the Second Degree; Count VI
- Grand Larceny; and Count VII - Knowingly
Concealing Stolen Property, in the District
Court of Pontotoc County, Case No. CF-2015287. In a plea agreement, the trial court diverted Hackney to Pontotoc County Drug Court.
Upon successful completion of Drug Court the
case would be dismissed and expunged. If
unsuccessful at Drug Court, the trial court
would receive the following concurrent sentences: twenty years imprisonment on each of
Counts I and II; ten years on each of Counts III,
V and VIII; seven years on Count IV; and five
years on each of Counts VI and VII. Hackney
entered into a Drug Court performance contract. On August 6, 2015, the State filed an
Application to Terminate Drug Court Participation and Sentence Defendant. After a hearing on November 2, 2015, the trial court terminated Hackney from Drug Court and sen-
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61
tenced him as described above. Hackney filed
a timely Motion to Withdraw Plea, which was
denied after a November 6, 2015 hearing. From
the denial of his Motion to Withdraw Plea, Clayton Charles Hackney has perfected his certiorari
appeal. CERTIORARI DENIED. Opinion by:
Smith, P.J.; Lumpkin, V.P.J., concur in results;
Johnson, J., concur; Lewis, J., concur; Hudson, J.,
concur.
F-2016-3 — Marvin Alphanso James, Appellant, was tried by jury for the crimes of Count
1 - Lewd or Indecent Proposal to a Child Under
16 and Count II - Resisting an Officer (Misdemeanor) in Case No. CF-2014-6469 in the District Court of Tulsa County. The jury returned a
verdict of guilty and recommended as punishment three years imprisonment on Count I
with no incarceration or fine imposed on Count
II. The trial court sentenced accordingly. From
this judgment and sentence Marvin Alphanso
James has perfected his appeal. Judgment and
Sentence AFFIRMED; Motion for Oral Argument DENIED. Opinion by: Smith, P.J.; Lumpkin, V.P.J., concur; Johnson, J., concur; Lewis, J.,
concur; Hudson, J., concur.
C-2016-467 — Justin Hughes, Petitioner,
entered an un-negotiated Alford plea to the
crime of Manufacturing Child Pornography in
Case No. CF-2012-3996 in the District Court of
Oklahoma County. Following an April 29, 2016
hearing, the trial court sentenced Petitioner to
20 years imprisonment. Petitioner filed a motion to withdraw plea which the court denied
after a hearing held June 3, 2016. From this
denial of his motion to withdraw plea, Justin
Hughes has perfected his certiorari appeal.
CERTIORARI DENIED. Opinion by: Smith,
P.J.; Lumpkin, V.P.J., concur in results; Johnson,
J., concur; Lewis, J., concur; Hudson, J., concur.
RE-2015-947 — Damauria Velie Walton, Appellant, appeals from the revocation in full of
his concurrent eighteen year and ten year suspended sentences in Case No. CF-2013-8026
and his concurrent six year suspended sentence CF-2014-468 in the District Court of Oklahoma County, by the Honorable Timothy R.
Henderson, District Judge. AFFIRMED. Opinion by: Smith, P.J.; Lumpkin, V.P.J., concur;
Johnson, J., concur; Lewis, J., concur; Hudson,
J., concur.
F-2015-990 — Clayton Charles Hackney, Appellant, pled guilty to the crimes of Counts I
and II - Larceny of an Automobile, Counts III,
V and VIII - Conspiracy to Commit a Felony,
62
Count IV - Burglary in the Second Degree,
Count VI - Grand Larceny and Count VII Knowingly Concealing Stolen Property in Case
No. CF-2015-287 in the District Court of Pontotoc County. In a plea agreement, the trial court
diverted Appellant to the Pontotoc County
Drug Court. Upon successful completion of
Drug Court, the case would be dismissed and
expunged. If Appellant was unsuccessful in
Drug Court, the trial court would impose the
following sentences to be served concurrently:
twenty years imprisonment on each of Counts
I and II; ten years imprisonment on each of
Counts III, V and VIII; seven years on Count
IV; and five years on each of Counts VI and VII.
Hackney entered into a Drug Court performance contract. On August 6, 2015, the State
filed an Application to Terminate Drug Court
Participation and Sentence Defendant. After a
hearing on November 2, 2015, the trial court
terminated Hackney from Drug Court and
sentenced him as described above. From
this judgment and sentence Clayton Charles
Hackney has perfected his appeal. AFFIRMED.
Opinion by: Smith, P.J.; Lumpkin, V.P.J., concur; Johnson, J., concur; Lewis, J., concur;
Hudson, J., concur.
C-2016-315 — Michelle Bays, Petitioner entered blind pleas of guilty to Counts I-V Embezzlement; Counts VI-XI - Obtaining
Money by False Pretenses (Felony) and Counts
XII-XXXI - Obtaining Money by False Pretenses (Misdemeanor) in the District Court of Garfield County, Case No. CF-2014-650. After a
hearing, the Honorable Paul K. Woodward
sentenced Bays to five years imprisonment,
suspended, on each of Counts I-V; ten years,
suspended, on each of Counts VI-XI; one year
in the Garfield County Jail on each of Counts
XII-XXXI, with credit for time served in Counts
XII-XXXI; and $65,137.23 in restitution. Count I
runs consecutively to Count XII, Counts II-V
run concurrently to Count I, Count VI runs
concurrently to Count I, Counts VII-XI run
consecutively to Count VI, and Counts XIIIXXXI run concurrently to Count XII. Bays’
timely Motion to Withdraw was denied after
an April 6, 2016 hearing. From this denial of
her Motion to Withdraw, Michelle Bays has
perfected her certiorari appeal. CERTIORARI
DENIED. Opinion by: Smith, P.J.; Lumpkin,
V.P.J., concur; Johnson, J., concur; Lewis, J.,
concur; Hudson, J., concur.
F-2014-1000 — Joseph Aaron Mitchell, Appellant, was tried by jury for the crime of Murder
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Vol. 88— No. 1 — 1/14/2017
in the First Degree, in Case No. CF-2012-1873,
in the District Court of Tulsa County. The jury
returned a verdict of guilty and recommended
as punishment life imprisonment without the
possibility of parole. The trial court sentenced
accordingly. From this judgment and sentence
Joseph Aaron Mitchell has perfected his appeal.
The Judgment and Sentence of the district court
is AFFIRMED. Appellant’s application for an
evidentiary hearing is DENIED. The State’s motion to supplement the record on appeal is also
DENIED. The trial court is ORDERED to correct the Judgment and Sentence nunc pro tunc
by deleting the order of post-imprisonment
supervision. Opinion by: Hudson, J.; Smith,
P.J., Concurs in Results; Lumpkin, V.P.J., Concurs; Johnson, J., Concurs in Results; Lewis, J.,
Concurs in Results.
Thursday, December 29, 2016
F-2015-885 — Charles Wade Sisemore, Appellant, was tried by jury for the crimes of Failure
to Register as a Sex Offender (Count 1), Sex
Offender Living Within 2,000 feet of a Park
(Count 2), and Stalking (Misdemeanor) (Count
3) in Case No. CF-2014-243 in the District Court
of Osage County. The jury returned a verdict of
guilty and assessed punishment at twenty-five
years imprisonment on Count 1, fifteen years
imprisonment on Count 2, and one year on
Count 3. The trial court sentenced accordingly
and ordered the sentences to be served concurrently. From this judgment and sentence Charles
Wade Sisemore has perfected his ap-peal. The
Judgment and Sentence of the District Court is
AFFIRMED. Opinion by: Johnson, J.; Smith, P.J.,
concurs; Lumpkin, V.P.J., concurs in results;
Lewis, J., concurs; Hudson, J., concurs.
F-2015-932 — Justin Todd Casey, Appellant,
appeals from an order of the District Court of
Lincoln County, entered by the Honorable
Cynthia Ferrell Ashwood, District Judge, terminating Appellant from the Drug Court Program, and revoking his concurrent suspended
sentences of ten years on Count 1 and one year
on Count 2 in Case No. CF-2014-82, and one
year in Case No. CM-2013-478. AFFIRMED.
Opinion by: Johnson, J.; Smith, P.J., concurs;
Lumpkin, V.P.J., concurs; Lewis, J., concurs;
Hudson, J., concurs.
Friday, December 30, 2016
M-2015-1122 — Following a jury trial on
October 27, 2015, Appellant Serapio Sanchez
was found guilty in the City of Tulsa Municipal
Court Citation Nos. 5973373, 5973374 and
Vol. 88— No. 1 — 1/14/2017
6009656, of Refusal to Surrender a Biting Dog,
Harboring an Animal Which Attacks and Harboring a Vicious Animal respectively. Appellant was sentenced to one day in the city jail
and a Twelve Hundred Dollar fine for each
citation. Appellant appeals from the Judgment
and Sentences imposed. The Judgment and
Sentences of the trial court are AFFIRMED.
Opinion by: Lumpkin, V.P.J.; Smith, P.J.: Concur; Johnson, J.: Concur; Lewis, J.: Concur;
Hudson, J.: Concur.
ACCELERATED DOCKET
Wednesday, December 14, 2016
J-2016-0745 — J.M.D., Appellant, was adjudicated a delinquent child following an adjudicatory hearing in the District Court of Stephens
County, Case No. JDL-2015-76. Appellant appeals from the order adjudicating her as a
delinquent child. The order of the District
Court is REVERSED and REMANDED with
INSTRUCTIONS to DISMISS. Opinion by:
Smith, P.J.; Lumpkin, V.P.J.: concur; Johnson, J.:
concur; Lewis, J.: concur; Hudson , J.: concur.
COURT OF CIVIL APPEALS
(Division No. 2)
Friday, December 9, 2016
113,853 — Mehlburger Brawley, Inc., an
Oklahoma corporation, Plaintiff, v. Derryberry
Naifeh, L.L.P., an Oklahoma limited liability
partnership, Douglas A. Rice, individually, and
Pete G. Serrata, III, individually, Defendants/
Appellees, and Craig Shew, as Court-Appointed Receiver for Mehlburger Brawley, Inc.,
Appellant. Appeal from the District Court of
Tulsa County, Hon. Mary F. Fitzgerald, Trial
Judge. In this legal malpractice action, Appellant Craig Shew (the Receiver) appeals from an
Order of the district court denying his motion
to be substituted as plaintiff for Plaintiff (MBI)
in its legal malpractice lawsuit against Defendants/Appellees (Defendants). The trial court
determined MBI’s lawsuit could not be transferred to the Receiver and such transfer is
against public policy because the Receiver
stood in the shoes of MBI’s former adversaries
in a lawsuit in which a district court appointed
the Receiver. Under the facts in this case, we
conclude the Receiver is not the functional
equivalent of a bankruptcy trustee nor vested
with the broad powers of the trustee over a
bankruptcy estate, and, thus, the Receiver does
not displace MBI as a party plaintiff in these
proceedings. Consequently, the trial court did
not err in denying the Receiver’s motion to
The Oklahoma Bar Journal
63
substitute himself for MBI as party plaintiff.
We further conclude, however, the order of
appointment granted the Receiver the authority and power to protect MBI assets through
lawsuits pursued in his own name and his
interest does not contravene public policy. We
thus conclude the Receiver’s motion to substitute is properly considered a motion to intervene
and instruct the trial court to grant the motion to
intervene. Accordingly, we affirm in part, reverse
in part, and remand with directions. AFFIRMED
IN PART, REVERSED IN PART, AND REMANDED WITH DIRECTIONS. Opinion from Court of
Civil Appeals, Division II, by Barnes, J.; Rapp, J.,
concurs, and Wiseman, J. (sitting by designation), concurs in result.
Tuesday, December 20, 2016
114,180 — In the Matter of: L.P.L. and T.E.P.,
children under 18 years of age. Kerry Lalehparvaran, Appellant, vs. State of Oklahoma, Appellee. Appeal from an Order of the District
Court of Tulsa County, Hon. Doris L. Fransein,
Trial Judge, entering judgment on a jury verdict terminating Mother’s parental rights to
her Child, TEP, on grounds that Mother failed
to protect Child from heinous or shocking
abuse to a sibling of Child. Clear and convincing evidence supports the determination that
Mother failed to protect Child’s sibling, LPL,
from physical abuse, that was heinous and
shocking, and that it is in Child’s best interests
to terminate Mother’s parental rights. In addition to the latest incident leading to Child and
LPL being taken into protective custody, Mother has had a history of violent relationships, yet
has repeatedly allowed her abusers back into
her life and the life of her children, and refused
offers of help both from family members and
service providers. We find no fundamental error
in the jury’s decision or the trial court’s judgment on the verdict. Accordingly, the judgment
is affirmed. AFFIRMED. Opinion from the Court
of Civil Appeals, Division II by Thornbrugh, P.J.;
Rapp, J., and Barnes, J., concur.
114,392 — Houchin Electric Co., Inc., Plaintiff/Appellant/Counter-Appellee, vs. CYLX
Corporation, an Oklahoma Corporation, a/k/a
CYLX Corp.; Pheland Lucas, an individual;
and CYLX Engineering and Construction, Defendants/Appellees/Counter-Appellants. Proceeding to review a judgment of the District
Court of Tulsa County, Hon. Daman Cantrell,
Trial Judge. Houchin Electric Co, Inc. appeals
the decision of the district court in a bench trial
that Houchin entered into a “not to exceed
64
$50,000” contract to wire a residential property.
We conclude that no express or implied contract
was ever formed between the parties, and
remand this case for a determination of the
rights of the parties on a quasi-contract, quantum meruit basis. VACATED AND REMANDED. Opinion from Court of Civil Appeals, Division II, by Thornbrugh, P.J.; Rapp, J., and Barnes,
J., concur.
(Division No. 3)
Friday, December 9, 2016
113,686 — D&L Oil Tools, Bitco General Insurance Corp., Insurance Carrier, Petitioners,
vs. Michael Gritts and The Workers’ Compensation Commission, Respondents. Proceeding
to Review an Order of The Workers’ Compensation Commission. Petitioners (Employer)
seek review of an order of the Workers Compensation Commission (Commission) affirming the order of the trial court which denied
Employer’s Motion to Terminate Total Temporary Disability (TTD) benefits to Claimant. At
issue on appeal is whether the light duty work
offer made by Employer complied with Claimant’s light duty work restrictions and whether
Claimant had a valid excuse from doing light
duty work. Claimant testified at length regarding the circumstances of his medication and
work situation. The ALJ and Commission listened to each side at length and throughly examined the evidence. In light of the foregoing, we
hold the Commission did not err according to
the elements of §78(C). The judgment of the
Commission is SUSTAINED. Opinion by Bell,
P.J.; Joplin, J. and Swinton, J., concur.
114,193 — In Re the Marriage of: Whitney
Gebard, Petitioner/Appellee, vs. Brian Gebard,
Respondent/Appellant. Appeal from the District Court of Oklahoma County, Oklahoma.
Honorable Aletia Timmons, Judge. Brian Gebard (Father) and Whitney Gebard (Mother)
were divorced in 2012. Mother and Father have
one child, S.G., born in 2009. After the 2012
divorce, the parents shared joint custody and
no child support was ordered to be paid by
either party. In 2014, both Mother and Father
sought to modify the divorce decree, each seeking sole custody of S.G. The parents reached an
agreement allowing Mother to assume sole
custody of the child and Father’s visitation was
modified. The trial court entered the agreed
terms, leaving the issue of child support. Mother sought child support after being awarded
sole custody, arguing a material, permanent
and substantial change in circumstances had
The Oklahoma Bar Journal
Vol. 88— No. 1 — 1/14/2017
occurred to warrant modification. The trial
court conducted a hearing on May 12, 2015 and
awarded child support to Mother in the amount
of $778/month. From this order Father appeals.
An appeal reviewing child support is one of
equitable cognizance. This Court will review
the whole record, weigh the evidence and
affirm the judgment where the judgment rendered is just and equitable. Brown v. Brown, 607
P.2d 1358, 1359 (Okla.1980). Mother and Father
have combined earnings in excess of the child
support guidelines, 46.5% of which is attributable to Father’s income and 53.5% is attributable to Mother’s income. The trial court then
set Father’s obligation at $778, as 46.5% of the
base monthly support obligation calculated
under Smith v. Smith, 2003 OK CIV APP 28, 67
P.3d 351, plus 46.5% of the child’s monthly
budgeted expenses that were approved by the
court. Father’s first proposition of error argues
the trial court abused its discretion when it
refused to apply the shared parenting deduction pursuant to 43 O.S. Supp. 2009 §118E(A).
The trial court considered evidence of the constant costs of caring for S.G. against the lack of
evidence that Father faced greater expenditures due to his increased visitation, combined
with the fact the support obligation was within
Father’s ability to pay. As a result, we do not
find error in the trial court’s order declining to
implement the parenting adjustment under
§118E. Father’s second proposition of error
argues the trial court abused its discretion in
making an upward deviation from the child
support guidelines. In Archer v. Archer, 1991
OK CIV APP 28, 813 P.2d 1059, 1061, the appellate court found “that child support in high
income cases must be determined on a case by
case basis, with the minimum support award
being the capped amount under the guidelines.” Under the case by case analysis conducted at the hearing, we do not find the trial
court abused its discretion by deviating from
the minimum support set forth in the guidelines to allow for some of the additional monthly expenses submitted by Mother. For the reasons provided herein, the order of the trial
court modifying the decree of dissolution of
marriage is AFFIRMED. Opinion by Joplin, J.;
Bell, P.J., and Swinton, J., concur.
114,902 — Multiple Injury Trust Fund, Petitioner, vs. Steve English and The Workers’
Compensation Court of Existing Claims,
Respondents. Proceeding to Review an Order
of the Workers’ Compensation Court of Existing Claims. Honorable Brad Taylor, Judge. This
Vol. 88— No. 1 — 1/14/2017
is the second appeal in this matter. In the first
appeal, Multiple Injury Trust Fund v. English,
Case No. 112,431 (Okla. Civ. App. Sept. 26,
2014) (unpublished) (“English I”), Petitioner,
Multiple Injury Trust Fund (MITF), argued that
Respondent, Steve English (Claimant), impermissibly obtained an award of permanent total
disability (PTD) benefits from the Workers’
Compensation Court of Existing Appeals (WCC).
Division I of this Court affirmed in part, vacated
in part and remanded the order awarding PTD
benefits to Claimant. In this second appeal,
MITF contends the WCC failed to abide by this
Court’s previous opinion. In English I, the
appellate court specifically held the WCC’s
award to Claimant of the full amount of PTD
benefits was excessive. On remand, the WCC’s
order awarded the exact same amount. Such an
award clearly violated the law of the case doctrine. That portion of the WCC’s order is
vacated and this matter is once again remanded to the WCC for redetermination of Claimant’s award. MITF also asserts in this appeal
that Claimant is not entitled to any award of
PTD benefits at this time, basing its argument
on Claimant’s receipt of third-party settlement funds. This identical argument was addressed and rejected in English I. Therefore,
the law of the case doctrine prevents relitigation of this issue as well. VACATED AND
REMANDED. Opinion by Bell, P.J.; Joplin, J.
and Swinton, J., concur.
(Division No. 4)
Tuesday, December 6, 2016
115,018 — In the Matter of M.H., Adjudicated
Deprived Child, Everett Hill, Petitioner, vs.
State of Oklahoma, Appellee. Appeal from the
District Court of Oklahoma County, Hon.
Gregory J. Ryan, Trial Judge. Everett Hill (Father) appeals an order of the trial court upon
jury verdict terminating his parental rights to
his minor son, MH. State sought termination
pursuant to 10A O.S.2011, § 1-4-904(B)(5), alleging Father had failed to correct the conditions
on the basis of which the minor child was adjudicated to be deprived. This Court, after record
review, finds that State presented clear and
convincing evidence to show that Father failed
to correct the conditions that led to the deprived
adjudication, and clear and convincing evidence that such termination is in MH’s best
interest. As a result, the trial court properly
terminated Father’s parental rights as to MH.
The judgment is therefore affirmed. AFFIRMED.
Opinion from the Court of Civil Appeals, Divi-
The Oklahoma Bar Journal
65
sion IV, by Goodman, C.J.; Wiseman, P.J., and
Fischer, J., concur.
Friday, December 9, 2016
115,212 — Discover Bank, Plaintiff/Appellee, v. Larry Williamson, Defendant/ Appellant. Appeal from an order of the District Court
of Tulsa County, Hon. Kirsten Pace, Trial Judge,
granting Discover Bank’s motion for summary
judgment. Discover served requests for admission on Williamson. When Williamson did not
respond, Discover filed its summary judgment
motion. Based on Williamson’s failure to respond to the requests for admission, it became
“conclusively established” that Williamson entered into the credit card agreement on the
designated account, that he was indebted to
Discover on the account, and payments on the
account are in default. We conclude summary
judgment was proper on Discover’s breach of
contract claim because there is no substantial
controversy as to any material fact, and Discover was entitled to judgment as a matter of
law. The trial court correctly granted Discover’s motion for summary judgment. We affirm
the trial court’s decision. AFFIRMED. Opinion
from the Court of Civil Appeals, Division IV,
by Wiseman, P.J.; Goodman, C.J., and Fischer,
J., concur.
115,219 — David Simpson, an individual,
and Norma Simpson, an individual, Plaintiffs/
Appellants, vs. Magnum Energy, Inc., an Oklahoma Corporation, Defendant/Appellee, and
Monexco, LLC, an Oklahoma Limited Liability
Company, Monexco Operating Company, A
Foreign Corporation, Jack’s Flex Pipe, LLC, An
Oklahoma Limited Liability Company, Exco
Resources, Inc., A Texas Corporation, Montgomery Exploration Company, Ltd, A Texas
Limited Partnership, and Campbell & Associates, Inc., an Oklahoma Corporation, Defendants. Appeal from an order of the District
Court of Grady County, Hon. Richard Van
Dyck, Trial Judge. Plaintiffs appeal the trial
66
court’s order granting summary judgment to
Magnum Energy, Inc. (Magnum). Mr. Simpson
suffered personal injury while he was working
on an oil tank farm in which Magnum had a
financial interest as a non-operator investor.
Plaintiffs alleged Magnum breached a duty of
care owed to them and sought damages. The
trial court granted Magnum’s motion for summary judgment and, all other Defendants being
dismissed, entered judgment for Magnum. We
find that, while Magnum had a financial interest in the lease, its interests were limited to the
costs, but not the methods, of operation. The
methods of operation were contractually exclusive to Monexco. Magnum did not hire Mr.
Simpson, had no right to permit or deny access
to any contractor to the site, exercised no control over the contractor, and therefore owed no
duty of care to Mr. Simpson. The trial court’s
grant of summary judgment to Magnum was
correct and is affirmed. AFFIRMED. Opinion
from the Court of Civil Appeals, Division IV,
by Goodman, C.J.; Wiseman, P.J., and Fischer,
J., concur.
Monday, December 12, 2016
114,504 — State of Oklahoma, Plaintiff/
Appellant, vs. Orval Davis, Claimant/ Appellee. Appeal from an order of the District Court
of Sequoyah County, Hon. Jeff Payton, Trial
Judge, directing that cash seized from Claimant Orval Davis be returned to him. The trial
court considered evidence received well after
the conclusion of the evidentiary hearing, and
based its order on that post-trial evidence.
State was neither provided with this evidence,
nor given an opportunity to cross-examine
what it argues to be rank hearsay. We hold the
trial court should have entered judgment upon
the evidence produced at trial and erred when
it relied on additional material that was not
produced at trial. REVERSED AND REMANDED FOR NEW TRIAL. Opinion from the Court
of Civil Appeals, Division IV, by Goodman,
C.J.; Wiseman, P.J., and Fischer, J., concur.
The Oklahoma Bar Journal
Vol. 88— No. 1 — 1/14/2017
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POSITIONS AVAILABLE
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].
OKLAHOMA BASED TRIBE SEEKS STAFF ATTORNEY. Office location: Oklahoma, Texas, Utah or Kansas. Salaried/health/401(k)/vacation/sick leave, etc.
Required expertise in federal administrative, human
resource, corporate and Native American law. Recent
graduates are encouraged to apply. Strong work ethic
and self-motivation skills required. All replies considered confidential. Send resume and salary requirements to: “Box Z,” Oklahoma Bar Association, P.O. Box
53036, Oklahoma City, OK 73152.
ATTORNEY
(with 3 to 5 years experience)
needed for general civil practice, by AV-rated Tulsa
insurance and transportation defense firm. Very
busy, fast-paced office offering competitive salary
commensurate with experience, health/life insurance, 401k, etc. Candidates with strong academic
background and practical litigation experience,
please send a résumé and writing sample (10 pg.
max) to “Box PP,” Oklahoma Bar Association, P.O.
Box 53036, Oklahoma City, OK 73152.
The Oklahoma Bar Journal
67
POSITIONS AVAILABLE
POSITIONS AVAILABLE
THE ASSOCIATE ATTORNEY WILL REVIEW PLEADINGS, ASSIST WITH TASK AND WORKFLOW MANAGEMENT and accompanying paperwork, not limited
to providing professional legal assistance, advice and
counsel with respect to collections and creditor’s rights.
The position requires research and analysis of legal
questions and may entail daily court appearances. The
position is part of a growing team of attorneys across
several states and is located in Oklahoma City. Please
send resumes to [email protected].
CHILD SUPPORT SERVICES IS SEEKING A FULLTIME ATTORNEY for our Jay District Office located at
438 S. 9th Street, Jay, OK 74346. This position is assigned the primary responsibility as managing attorney for a Child Support Services office. 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 does not have alternate hiring levels. The salary
is $5451.58 per month with an outstanding benefits package including health and dental insurance, paid leave
and retirement. Interested individuals must send a cover
letter noting announcement number 16-150U, resume,
three reference letters and a copy of current OBA card to:
www.jobs.ok.gov, under unclassified positions. Applications must be received no earlier than 8 a.m. Dec. 9, 2016,
and no later than 5 p.m. Jan. 23, 2017. For additional
information about this job opportunity, please email
[email protected]. The State of Oklahoma is an
equal opportunity employer.
EDMOND LAW FIRM SEEKING EXPERIENCED
OIL AND GAS TITLE ATTORNEY. Prefer 5+ years’ experience rendering Oklahoma title opinions. Pay commensurate with experience. Please send resume to
[email protected].
Make a Difference
Do you want a fulfilling career where you can
really make a difference in the lives of people? Are
you fervent about equal justice? Does a program
with a purpose motivate you? Legal Aid Services
of Oklahoma, Inc. (LASO) is searching for an
Attorney for its Stillwater Law Office.
We are a statewide, civil law firm providing legal
services to the impoverished and senior population
of Oklahoma. With more than twenty offices and a
staff of 180+, we are committed to the mission of
equal justice.
The successful individuals will have a passion for
justice and empathy for impoverished individuals,
computer literate and willingness to learn and
contribute to a positive work environment. In
return, the employee receives a great benefit
package including paid health, dental, life insurance plan; a pension, and generous leave benefits.
Additionally, LASO offers a great work environment and educational/career opportunities.
To start making a difference you MUST complete
our application and submit it to Legal Aid Services
of Oklahoma.
The online application can be found:
https://legalaidokemployment.wufoo.com/
forms/z7x4z5/
Print application
http://www.legalaidok.org/
documents/388541Employment_Application_
Revised_10.2008.pdf
Legal Aid is an Equal Opportunity/Affirmative
Action Employer.
DOWNTOWN OKLAHOMA LAW FIRM WITH FIVE
ATTORNEYS seeking of counsel attorney and/or office
sharing arrangement. Attorney(s) must have some existing clients to join office and share expenses. Some
referrals could be available. Telephone, internet, receptionist, conference room, access to kitchen, access to
printer/copier/fax/scanner on system network. If interested, please contact us at “Box A,” Oklahoma Bar
Association, P.O. Box 53036, Oklahoma City, OK 73152.
68
DOWNTOWN OKLAHOMA CITY PERSONAL INJURY FIRM SEEKS AN ASSOCIATE with minimum 3 to 5
years’ experience in general civil litigation. Individual
must be able to draft pleadings, prepare discovery responses and handle scheduling. Trial and deposition
experience preferred. Please send your resume with
salary requirements to [email protected].
THE OFFICE OF THE GENERAL COUNSEL WITH
THE OKLAHOMA BAR ASSOCIATION HAS AN
OPENING FOR A FULL-TIME INVESTIGATOR. The
Office of the General Counsel receives, investigates and
prosecutes complaints against Oklahoma licensed attorneys. Duties include interviewing witnesses, reviewing
legal documents and financial statements, preparing reports and testifying at disciplinary and reinstatement
hearings before the Professional Responsibility Tribunal. Applicants should have a degree from an accredited university or comparable work experience, possess
excellent writing skills and be able to work independently. Some travel may be required. Law enforcement,
accounting, legal or investigative experience strongly
preferred. Salary negotiable, depending upon credentials and experience. Excellent benefits including retirement, health and life insurance. If you are interested in
a career in investigations, please send your cover letter
and resume to [email protected]. The Oklahoma Bar Association is an equal opportunity employer.
The Oklahoma Bar Journal
Vol. 88— No. 1 — 1/14/2017
POSITIONS AVAILABLE
POSITIONS AVAILABLE
Make a Difference
Do you want a fulfilling career where you can
really make a difference in the lives of people? Are
you fervent about equal justice? Does a program
with a purpose motivate you? Legal Aid Services
of Oklahoma, Inc. (LASO) is searching for an
Attorney for its McAlester Law Office.
We are a statewide, civil law firm providing legal
services to the impoverished and senior population
of Oklahoma. With more than twenty offices and a
staff of 180+, we are committed to the mission of
equal justice.
The successful individuals will have a passion for
justice and empathy for impoverished individuals,
computer literate and willingness to learn and
contribute to a positive work environment. In
return, the employee receives a great benefit
package including paid health, dental, life insurance plan; a pension, and generous leave benefits.
Additionally, LASO offers a great work environment and educational/career opportunities.
To start making a difference you MUST complete
our application and submit it to Legal Aid Services
of Oklahoma.
The online application can be found:
https://legalaidokemployment.wufoo.com/
forms/z7x4z5/
Print application
http://www.legalaidok.org/
documents/388541Employment_Application_
Revised_10.2008.pdf
Legal Aid is an Equal Opportunity/Affirmative
Action Employer.
OKC-BASED PROFESSIONAL ASSOCIATION SEEKS
ATTORNEY WITH AT LEAST 3 YEARS’ PRACTICE
EXPERIENCE for work in collaborative team environment. Background in education law preferred. Successful candidate must have superior research, writing and
presentation skills. Responsibilities include research
and analysis, contract and policy review and development, responding orally and in writing to member and
colleague questions, preparing written articles and
memos, occasional briefing, planning member professional development opportunities and periodic small
and large group presentations. Please send cover letter
and resume to [email protected]. Responses will be
held in confidence.
SMALL DOWNTOWN OKLAHOMA CITY FIRM OF
DEFENSE ATTORNEYS WITH OFFICES IN DALLAS
SEEKS AN ASSOCIATE with 4 to 6 years’ experience in
product liability, catastrophic injury, premises liability,
medical malpractice, trucking/transportation, commercial litigation or expert intensive litigation. The
firm offers an atmosphere of strong camaraderie with
many long time employees and excellent support staff.
Need a self-starter who can hit the ground running.
Please send your resume and salary requirements to
[email protected].
Vol. 88— No. 1 — 1/14/2017
ESTABLISHED OKC LAW FIRM SEEKING ATTORNEY
WITH EXPERIENCE IN HANDLING WORKERS’
COMPENSATION CASES. Must have strong research
and writing skills and be able to work independently.
Please submit resume and salary requirements to “Box
W,” Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, OK 73152.
THE OFFICE OF THE GENERAL COUNSEL WITH
THE OKLAHOMA BAR ASSOCIATION HAS AN
OPENING FOR A FULL-TIME LEGAL ASSISTANT.
The Office of the General Counsel receives, investigates
and prosecutes complaints against Oklahoma licensed
attorneys. The ideal candidate will have legal assistant
experience or will have administrative assistant/secretarial experience with an interest in learning the legal
field. Candidates should be proficient in Word and basic computer skills, have a helpful attitude and have
patient telephone skills. The salary is commensurate
with experience and the OBA offers a generous benefits
package. If this sounds like your new opportunity,
please send your cover letter and resume to ginah@
okbar.org. The Oklahoma Bar Association is an equal
opportunity employer. The Oklahoma Bar Association is
an equal opportunity employer.
Make a Difference
Do you want a fulfilling career where you can
really make a difference in the lives of people? Are
you fervent about equal justice? Does a program
with a purpose motivate you? Legal Aid Services
of Oklahoma, Inc. (LASO) is searching for an
Attorney for its Norman Law Office.
We are a statewide, civil law firm providing legal
services to the impoverished and senior population
of Oklahoma. With more than twenty offices and a
staff of 180+, we are committed to the mission of
equal justice.
The successful individuals will have a passion for
justice and empathy for impoverished individuals,
computer literate and willingness to learn and
contribute to a positive work environment. In
return, the employee receives a great benefit
package including paid health, dental, life insurance plan; a pension, and generous leave benefits.
Additionally, LASO offers a great work environment and educational/career opportunities.
To start making a difference you MUST complete
our application and submit it to Legal Aid Services
of Oklahoma.
The online application can be found:
https://legalaidokemployment.wufoo.com/
forms/z7x4z5/
Print application
http://www.legalaidok.org/
documents/388541Employment_Application_
Revised_10.2008.pdf
Legal Aid is an Equal Opportunity/Affirmative
Action Employer.
The Oklahoma Bar Journal
69
POSITIONS AVAILABLE
CLASSIFIED INFORMATION
TULSA LITIGATION FIRM WITH DIVERSE CIVIL
PRACTICE SEEKS AN ATTORNEY with between 3 to
10 years of experience. Compensation DOE with excellent benefits. Applications kept confidential. Send resume, writing sample and references to [email protected].
REGULAR CLASSIFIED ADS: $1.25 per word with $35 minimum per insertion. Additional $15 for blind box. Blind box
word count must include “Box ___,” Oklahoma Bar Association, PO Box 53036, Oklahoma City, OK 73152.”
PARALEGAL: Downtown Oklahoma City law firm
seeks experienced paralegal. Salary and benefits highly
competitive. The ideal candidate will have extensive
experience in document-intensive multi-party litigation and electronic discovery. Trial experience necessary. Experience in summation, relativity, trial director
and other relevant litigation technology necessary. Be
self-motivated requiring limited supervision. Submit
resume to: [email protected].
TWO POSITIONS FOR ASSISTANT DISTRICT ATTORNEY, one in the Carter County District Attorney’s
Office in Ardmore, OK, and the other in the Johnston
County District Attorney’s Office in Tishomingo, OK.
Salary commensurate with experience. More details
contact District Attorney Craig Ladd at 580-223-0674 or
by email at [email protected]. Mail resumes to
20 B. Street SW, Suite 202, Ardmore OK 73401.
DISPLAY CLASSIFIED ADS: Bold headline, centered, border
are $60 per inch of depth.
DEADLINE: See www.okbar.org/members/BarJournal/
advertising.aspx or call 405-416-7084 for deadlines.
SEND AD (email preferred) stating number of times to be
published to:
[email protected], or
Mackenzie McDaniel, Oklahoma Bar Association,
PO Box 53036, Oklahoma City, OK 73152.
Publication and contents of any advertisement are not to be
deemed an endorsement of the views expressed therein, nor
shall the publication of any advertisement be considered an endorsement of the procedure or service involved. All placement
notices must be clearly nondiscriminatory.
DO NOT STAPLE BLIND BOX APPLICATIONS.
OKLAHOMA CITY LAW FIRM SEEKS TITLE ATTORNEY. Must have experience with Oklahoma title, including HBP title, and preferably rendering Title Opinions. Please submit cover letter, resume and references
to [email protected].
70
The Oklahoma Bar Journal
Vol. 88— No. 1 — 1/14/2017
UPCOMING
WEBCASTS
ALL of your required 12 hours of MCLE credit can be received by viewing Live Webcasts, these programs are
being "live-streamed" at certain dates and times and MUST be viewed on these scheduled dates and times:
Wednesday, January 18
Attorney, Heal Thyself:
The Detection, Treatment and Prevention of
Substance Abuse
(1 hour of Ethics)
Presented by Mesa CLE with Humorist Sean Carter
Frida January 20
Friday,
Cybersleuth Investigative Series:
Investigative Due Diligence on a Budget
(1 hour of Ethics)
Presented by CLESeminars.com
Saturday, January 21
The 2017 Ethy Awards
(1 hour of Ethics)
Presented by Mesa CLE with Humorist Sean Carter
Wednesday, January 25
Social Media as Investigative Research
and Evidence
Tuesday, February 7
Legal Ethics Is No Laughing:
(1 hour of Ethics)
Presented by CLESeminars.com
Matter What Lawyer Jokes Say About Our Ethical Foibles
(1 hour of Ethics)
Presented by Mesa CLE with Humorist Sean Carter
Thursday, January 26
The Ethics of Social Media Research
Tuesday, February 14
Don’t Be A Stupid Cupid:
(1 hour of Ethics)
Presented by CLESeminars.com
Thursday, January 26
Fail Better:
Continuing Efforts to Eliminate Bias
in the Legal Profession
(1 hour of Ethics)
Presented by Mesa CLE with Humorist Sean Carter
Avoiding Inappropriate Entanglements in the
Practice of Law
(1 hour of Ethics)
Presented by Mesa CLE with Humorist Sean Carter
Tuesday, February 21
The Passion of the Barrister:
An Ethical Lawyer is a Happy Lawyer
(1 hour of Ethics)
Presented by Mesa CLE with Humorist Sean Carter
To register go to: www.okbar.org/members/CLE/Webcasts
Vol. 88— No. 1 — 1/14/2017
The Oklahoma Bar Journal
71
YOU MAY EARN
UNLIMITED
HOURS FOR
WEBCAST
ENCORES
Saturday, January 14 @ Noon
Professionalism Issues for
Solo & Small Firm Lawyers
(0 / 1 MCLE)
Wednesday, February 8 @ 10 a.m.
Professionalism Issues for
Solo & Small Firm Lawyers
(0 / 1 MCLE)
Frida February 10 @ 9 a.m.
Friday,
A Guide to 42 U.S.C. § 1983
Principles and Litigation
(6 / 0 MCLE)
Saturday, February 11 @ 11 a.m.
The Use of Spendthrift Provisions
(1 / 0 MCLE)
Sunda February 12 @ 9 a.m.
Sunday,
The Rapidly Evolving Field of
Transgender Law
(6 / 1 MCLE)
Sunday, February 12 @ 9 a.m.
What is a Good Parent?
Exploring Parental Competency
in a Legal Context
(6 / 1 MCLE)
Sunday, February 12 @ 11 a.m.
Drones Are Coming!
What Every Attorney Needs to Know
(1.5 / 0 MCLE)
Wednesday, February 15 @ 9 a.m.
33rd Annual Basic Bankruptcy
Course - Leaping into Chapter 7
(6 / 1 MCLE)
Wednesday, February 15 @ 1 p.m.
Screening Automotive, Product
Liability and Trucking Cases
(1 / 0 MCLE)
To view a complete list of Webcast Encores
or to register go to:
www.okbar.org/members/CLE/WebcastEncore