Volume 77
◆
No. 19
◆
July 15, 2006
Cour t Mater ial
1962
The Oklahoma Bar Journal
Vol. 77 — No. 19 — 7/15/2006
OFFICERS & BOARD OF GOVERNORS
William R. Grimm, President, Tulsa
Stephen D. Beam, President-Elect, Weatherford
Jerome A. Holmes, Vice President, Oklahoma City
Julie E. Bates, Oklahoma City
Dietmar K. Caudle, Lawton
Cathy M. Christensen, Oklahoma City
Robert S. Farris, Tulsa
Brian T. Hermanson, Ponca City
Michael W. Hogan, McAlester
R. Victor Kennemer III, Wewoka
Mike Mordy, Ardmore
Jon K. Parsley, Guymon
Deborah A. Reheard, Eufaula
Robert B. Sartin, Tulsa
Alan Souter, Bristow
Keri G. Williams, Stillwater,
Chairperson, OBA/Young Lawyers Division
EVENTS CALENDAR
JULY
17
OBA Alternative Dispute Resolution Section Meeting; 3 p.m.;
Oklahoma Bar Center, Oklahoma City and Tulsa County Bar Center,
Tulsa; Contact: Larry Yadon (918) 595-6607 or Barry Davis (405)
607-8757
19
OBA Bar Center Facilities Committee Meeting; 9 a.m.; Oklahoma
Bar Center, Oklahoma City and Tulsa County Bar Center, Tulsa;
Contact: Bill Conger (405) 521-5845
State Legal Referral Service Task Force Meeting; 1 p.m.;
Oklahoma Bar Center, Oklahoma City and Tulsa County Bar Center,
Tulsa; Contact: Dietmar Caudle (580) 248-0202
OBA Lawyers with Physical Challenges Committee Meeting;
3:30 p.m.; Oklahoma Bar Center, Oklahoma City and Tulsa County
Bar Center, Tulsa; Contact: James Grennan (405) 924-4475
BAR CENTER STAFF
John Morris Williams, Executive Director;
Dan Murdock, General Counsel; Donita Bourns
Douglas, Director of Educational Programs;
Carol A. Manning, Director of Public Information;
Craig D. Combs, Director of Administration;
Gina L. Hendryx, Ethics Counsel; Jim Calloway,
Director of Management Assistance Program; Rick
Loomis, Director of Information Systems; Beverly S.
Petry, Administrator MCLE Commission; Jane
McConnell, Coordinator Law-related Education;
Loraine Dillinder Farabow, Janis Hubbard and
Mike Speegle, Assistant General Counsels; Robert D.
Hanks, Senior Investigator; Sharon Orth, Ray Page
and Dorothy Walos, Investigators
20
Association of Legal Administrators, OKC Chapter; 11:30 a.m.;
Contact: Michelle Stewart (405) 239-2121
OBA Legal Intern Committee Meeting; 3:30 p.m.; Oklahoma Bar
Center, Oklahoma City and Tulsa County Bar Center, Tulsa;
Contact: H. Terrell Monks (405) 733-8686
Nina Anderson, Manni Arzola, Jenn Barrett, Cheryl
Beatty, Melissa Brown, Brenda Card, Sandy
Cowden, Chaz Davis, Sharon Dotson, Johnny Marie
Floyd, Matt Gayle, Susan Hall, Suzi Hendrix,
Misty Hill, Heidi McComb, Jeanne Minson, Wanda
Reece-Murray, Sandy Neal, Tim Priebe, Lori
Rasmussen, Tracy Sanders, Mark Schneidewent,
Dana Shelburne & Roberta Yarbrough
OBA Board of Governors Meeting; Ardmore; Contact: John Morris
Williams (405) 416-7000
OBA Lawyers Helping Lawyers Committee Meeting; 2 p.m.;
Oklahoma Bar Center, Oklahoma City; Contact: Keith Thomas
(405) 377-8774
OBA Communications Task Force Meeting; 3 p.m.; Oklahoma
Bar Center, Oklahoma City; Contact: Melissa DeLacerda
(405) 624-8383
22
OBA YLD Board of Directors Meeting; Tulsa County Bar Center,
Tulsa; Contact: Keri Williams (405) 385-5148
24-28 OBA Bar Examinations; 8 a.m.; Oklahoma Bar Center, Oklahoma
City; Contact: Board of Bar Examiners (405) 416-7075
EDITORIAL BOARD
AUGUST
Editor in Chief, John Morris Williams
News & Layout Editor, Carol A. Manning
Editor, Melissa DeLacerda, Stillwater
Associate Editors: Steve Barnes, Poteau; Martha
Rupp Carter, Tulsa; Mark Curnutte, Vinita;
Luke Gaither, Henryetta; D. Renee Hildebrant,
Oklahoma City; John Munkacsy, Lawton; Julia
Rieman, Enid; James Stuart, Shawnee and
Judge Lori M. Walkley, Norman
NOTICE of change of address (which must be in
writing and signed by the OBA member), undeliverable copies, orders for subscriptions or ads, news
stories, articles and all mail items should be sent to
the Oklahoma Bar Association, P.O. Box 53036,
Oklahoma City, OK 73152-3036.
Oklahoma Bar Association (405) 416-7000
Toll Free (800) 522-8065
FAX (405) 416-7001
Continuing Legal Education (405) 416-7006
Ethics Counsel (405) 416-7083
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Lawyers Helping Lawyers (800) 364-7886
Mgmt. Assistance Program (405) 416-7008
Mandatory CLE (405) 416-7009
OBJ & Public Information (405) 416-7004
Board of Bar Examiners (405) 416-7075
Oklahoma Bar Foundation (405) 416-7070
Vol. 77 — No. 19 — 7/15/2006
21
8
10
OBA Work/Life Balance Committee Meeting; 12 p.m.;
Oklahoma Bar Center, Oklahoma City; Contact: Melanie Jester
(405) 609-5280
OBA Bench and Bar Committee Meeting; 2 p.m.; Oklahoma Bar
Center, Oklahoma City and Tulsa County Bar Center, Tulsa;
Contact: Jack Brown (918) 581-8211
The Oklahoma Bar Association’s official Web site:
www.okbar.org
THE OKLAHOMA BAR JOURNAL is a publication of the Oklahoma Bar
Association. All rights reserved. Copyright© 2006 Oklahoma Bar Association.
The design of the scales and the “Oklahoma Bar Association” encircling the
scales are trademarks of the Oklahoma Bar Association. Legal articles carried
in THE OKLAHOMA BAR JOURNAL are selected by the Board of Editors.
THE OKLAHOMA BAR JOURNAL (ISSN 0030-1655) IS PUBLISHED FOUR TIMES A
MONTH IN JANUARY, THREE TIMES A MONTH IN FEBRUARY, MARCH, APRIL,
MAY, AUGUST, SEPTEMBER, OCTOBER, NOVEMBER AND DECEMBER AND
BIMONTHLY IN JUNE AND JULY EFFECTIVE JAN. 1, 2003. BY THE OKLAHOMA BAR
ASSOCIATION, 1901 N. LINCOLN BOULEVARD, OKLAHOMA CITY, OKLAHOMA
73105. PERIODICALS POSTAGE PAID AT OKLAHOMA CITY, OK. POSTMASTER:
SEND ADDRESS CHANGES TO THE OKLAHOMA BAR ASSOCIATION, P.O. BOX
53036, OKLAHOMA CITY, OK 73152-3036. SUBSCRIPTIONS ARE $55 PER YEAR
EXCEPT FOR LAW STUDENTS REGISTERED WITH THE OKLAHOMA BAR ASSOCIATION, WHO MAY SUBSCRIBE FOR $25. ACTIVE MEMBER SUBSCRIPTIONS ARE
INCLUDED AS A PORTION OF ANNUAL DUES. ANY OPINION EXPRESSED HEREIN
IS THAT OF THE AUTHOR AND NOT NECESSARILY THAT OF THE OKLAHOMA
BAR ASSOCIATION, OR THE OKLAHOMA BAR JOURNAL BOARD OF EDITORS.
The Oklahoma Bar Journal
1963
1964
The Oklahoma Bar Journal
Vol. 77 — No. 19 — 7/15/2006
OKLAHOMA BAR ASSOCIATION
table of
contents
July 15, 2006
• Vol. 77
• No. 19
page
1963
1966
1969
2029
2057
2071
EVENTS CALENDAR
INDEX TO COURT OPINIONS
SUPREME COURT OPINIONS
COURT OF CRIMINAL APPEALS OPINIONS
COURT OF CIVIL APPEALS OPINIONS
SUPREME COURT ISSUES STRIKE ORDERS:
OBA MEMBERS FOR NONPAYMENT OF 2005 DUES
2075
SUPREME COURT ISSUES STRIKE ORDERS:
OBA MEMBERS FOR NONCOMPLIANCE
WITH MCLE REQUIREMENTS FOR THE YEAR 2005
2077
MANDATES
Vol. 77 — No. 19 — 7/15/2006
The Oklahoma Bar Journal
1965
Index To Opinions Of Supreme Court
Ronny Gene Altman, Trustee of the Ronny Gene Altman, Revocable Trust, and S.N.S. Oil
and Gas Properties, Inc., an Oklahoma Corporation, individually and on behalf of all
others similarly situated, Appellees, vs. Apache Corporation, Appellant.
No. 102,356 ..........................................................................................................................................1969
2006 OK 36 SHERRIE SIZEMORE, Plaintiff/Appellant, CONTINENTAL CASUALTY
CO. d/b/a CNA INSURANCE COMPANY, an Illinois Corporation and
TRANSPORTATION INSURANCE COMPANY, an Illinois Corporation,
Defendant/Appellees, and KERR GROUP, INC. Defendant. No. 99,940 .................................1969
2006 OK 44 IN RE: APPOINTMENT OF THE DISPUTE RESOLUTION ADVISORY
BOARD SCAD No. 2006-59 ..............................................................................................................1969
2006 OK 46 BRONSON TRAILERS & TRUCKS, CREDIT GENERAL INSURANCE COMPANY, Petitioners/Counter-Respondents, v. RICHARD D. NEWMAN, SR.,
Respondent/Counter-Petitioner and THE WORKERS’ COMPENSATION COURT,
Respondent. No. 101,458...................................................................................................................1970
2006 OK 47 PHILLIP ROGER LIERLY and JOE BILL LIERLY, Appellees, v. TIDEWATER
PETROLEUM CORPORATION, Appellant. No. 100,844 ............................................................1973
2006 OK 48 BART FRANKLIN DAVIS, Petitioner, v. SOUTHWESTERN BELL
TELEPHONE, SOUTHWESTERN BELL TELEPHONE (OWN RISK) and THE
WORKERS’ COMPENSATION COURT, Respondents. No. 101,267 .........................................1980
2006 OK 49 STATE OF OKLAHOMA ex rel. OKLAHOMA BAR ASSOCIATION,
Complainant, v. BARRY KNIGHT BEASLEY, Respondent. SCBD No. 5085............................1983
2006 OK 50 STATE OF OKLAHOMA, ex rel. OKLAHOMA BAR ASSOCIATION,
Complainant, v. RHETT HENRY WILBURN, Respondent. SCBD No. 5012............................1990
2006 OK 53 DEWAYNE MONEYPENNEY, Plaintiff/Appellant, v. RICHARD E.
DAWSON, Defendant/Appellee. No. 101,311...............................................................................1994
2006 OK 54 STATE OF OKLAHOMA, ex rel. OKLAHOMA BAR ASSOCIATION
Complainant, v. JAMES MICHAEL ROGERS, Respondent. SCBD No. 5060,
OBAD No. 1657 ..................................................................................................................................1998
2006 OK 55 STATE OF OKLAHOMA ex rel. Oklahoma Bar Association, Complainant,
v. HOWARD STEVEN MILLER, Respondent. SCBD No. 5084 ..................................................2004
2006 OK 56 STATE OF OKLAHOMA ex rel. Oklahoma Bar Association, Complainant,
v. DAVID THOMAS MARSH, Respondent. SCBD No. 5178 ......................................................2005
2006 OK 57 DAVID WEI PAN, an individual, and XIAOLU WANG, an individual,
Plaintiffs/Respondents v. MARK BANE, an individual, and MARTA BANE, an
individual Defendants/Petitioners. No. 102,233...........................................................................2006
2006 OK 58 GARY GILBERT, as Guardian for JOHN E. GILBERT, an incapacitated
person, Appellee, v. SECURITY FINANCE CORPORATION OF OKLAHOMA, INC.;
MAVERICK ACQUISITION CORPORATION; MACI HOLDINGS, INC.; SECURITY
FINANCE CORPORATION OF SPARTANBURG; SECURITY GROUP, INC.; and
Appellants.
No.
101,664,
HOLDING
COMPANY,
CONTINENTAL
Consol. w/101,665 .............................................................................................................................2013
2006 OK 59 CAROL SAINT, Plaintiff/Petitioner, v. DATA EXCHANGE, INC.,
Defendant/Respondent. No. 102,084..............................................................................................2026
1966
The Oklahoma Bar Journal
Vol. 77 — No. 19 — 7/15/2006
Index To Opinions Of Court Of Criminal Appeals
2006 OK CR 27 KENNETH EUGENE HOGAN, Appellant, v. STATE OF OKLAHOMA,
Appellee. No. D-2003-610 .................................................................................................................2029
2006 OK CR 28 MICHAEL WAYNE HOWELL, Appellant, v. STATE OF OKLAHOMA,
Appellee. No. PCD-2003-268 ............................................................................................................2029
2006 OK CR 29 LAURA L. DUNKLE, Appellant, v. STATE OF OKLAHOMA, Appellee.
No. F-2004-621 ....................................................................................................................................2039
Index To Opinions Of Court Of Civil Appeals
CASES ASSIGNED TO DIVISIONS 1 AND 3 OF THE COURT OF CIVIL APPEALS ..........................2057
CASES ASSIGNED TO DIVISIONS 2 AND 4 OF THE COURT OF CIVIL APPEALS ..........................2058
2006 OK CIV APP 68 IN THE MATTER OF THE PROTEST TO THE DENIAL OF THE
SALES TAX CLAIMS FOR REFUND OF HILAND DAIRY FOODS COMPANY, LLC.,
Appellant, v. OKLAHOMA TAX COMMISSION, Appellee. No. 102,613 ................................2059
2006 OK CIV APP 69 SOUTHERN OKLAHOMA RESOURCE CENTER and
COMPSOURCE OKLAHOMA, Petitioners, v. CHARLENE SPARKS and the
WORKERS’ COMPENSATION COURT, Respondents. No. 102,844 .........................................2061
2006 OK CIV APP 70 H & EN, INC., Plaintiff/Appellant, v. OKLAHOMA
DEPARTMENT OF LABOR, Defendant/Appellee. No. 103,126................................................2063
2006 OK CIV APP 71 STATE OF OKLAHOMA, ex rel. DEPARTMENT OF
TRANSPORTATION, Plaintiff/Appellant, v. ALLIED TOWER COMPANY, INC.,
Defendant/Appellee, and MERCHANTS BANK OF SOUTH HOUSTON, a/k/a
MERCHANTS PARK BANK, formerly SOUTHERN STATE BANK, through GERRY
E. MONZINGO, Trustee, his substitutes or successors; GERRY E. MONZINGO,
TRUSTEE MERCHANTS BANK - SOUTH HOUSTON; and THE COUNTY
TREASURER FOR CRAIG COUNTY, Defendants. No. 100,109, Consol. w/100,467 .............2065
Vol. 77 — No. 19 — 7/15/2006
The Oklahoma Bar Journal
1967
OKLAHOMA BAR ASSOCIATION
Law-related Education Division
LAWYERS IN THE CLASSROOM
“If you would thoroughly know anything, teach it to others.”
- Tryon Edwards
V
olunteers are needed for the OBA/LRE
Lawyers in the Classroom program!
Oklahoma attorneys are invited to go back
to school and present law-related topics to students
at all levels. We will provide you with tips for
speaking with students, training on classroom
presentations, and lesson plans to guide your visit.
Numerous teachers have already requested lawyers
as guest speakers for the current school year. We
will connect you with a school in your community
— or anywhere in the state you’d like to speak!
If you’d like to be a Lawyers in the Classroom
presenter, please fill out and return the form below.
We are especially interested to know if you have
participated in this program in the past.
You know the law... now teach!
LESSON TOPICS:
• Contracts Law
• Constitution and Bill of
Rights
• Rules and Law
• Fourth Amendment
• First Amendment
• On to Adulthood
With booklet, “You’re 18 Now - It’s Your
Responsibility!”
• INFORM
Information Now for Oklahomans
Rejecting Meth
• Criminal Law
• Careers in Law
With brochure
LAWYERS IN THE CLASSROOM VOLUNTEER FORM 2006-07
Training Session(optional) Friday, August 11, 2006, 9:00 am — 3:00 pm at the Oklahoma Bar Association
LUNCH WILL BE PROVIDED
Title: ___________________ Name: __________________________________________
Address: ________________________________________________________________
City: ____________________________ County: ______ State: ____ Zip: _____________
Phone: ________________________ Email: _______________________________
Check all that apply:
❑
I would like to be a Lawyers in the Classroom speaker.
I am interested in speaking on the following topic(s) (Circle all that apply):
Contracts / Constitution & Bill of Rights / Rules and Law / Fourth Amendment
First Amendment / On to Adulthood / Meth Awareness / Criminal / Careers in Law / Other
❑
I am willing to speak (Circle all that apply)
In my county / in neighboring counties / outside my area / statewide
❑
I have participated in Lawyers in the Classroom in the past.
❑
I would like to attend the Lawyers in the Classroom training session Friday, August 11, 2006
Special training INFORM Program will be from 1-3 p.m. • All other program trainings will take place
from 9 a.m. - 12 p.m.
Return this form to: OBA/LRE • PO Box 53036 • Oklahoma City, OK 73152 • Fax: (405) 416-7088
1968
The Oklahoma Bar Journal
Vol. 77 — No. 19 — 7/15/2006
Supreme Court Opinions
Manner and Form of Opinions in the Appellate Courts;
See Rule 1.200, Rules — Okla. Sup. Ct. R., 12 O.S. Supp. 1996 (1997 T. 12 Special Supplement)
Ronny Gene Altman, Trustee of the Ronny
Gene Altman, Revocable Trust, and S.N.S.
Oil and Gas Properties, Inc., an Oklahoma
Corporation, individually and on behalf of
all others similarly situated, Appellees, vs.
Apache Corporation, Appellant.
faith in tort, and not whether a claimant has
sought enforcement in the district court.
DONE BY ORDER OF THE SUPREME
COURT IN CONFERENCE THIS 26 DAY OF
June, 2006.
/s/ Joseph M. Watt
JOSEPH M. WATT,
CHIEF JUSTICE
No. 102,356. June 20, 2006
ORDER
Appeal is withdrawn from assignment to
Court of Civil Appeals, Tulsa Divisions and
assigned to Court of Civil Appeals, Oklahoma
City Divisions.
WATT, C.J., KAUGER, EDMONDSON,
TAYLOR, COLBERT, JJ., concur.
DONE BY ORDER OF THE SUPREME
COURT this 20th day of June, 2006.
2006 OK 44
/s/ Joseph M. Watt
JOSEPH M. WATT,
CHIEF JUSTICE
WINCHESTER,
V.C.J.,
LAVENDER,
HARGRAVE, OPALA, JJ., dissent.
IN RE: APPOINTMENT OF THE DISPUTE
RESOLUTION ADVISORY BOARD
SCAD No. 2006-59. June 20, 2006
ORDER APPOINTING BOARD MEMBERS
2006 OK 36
SHERRIE SIZEMORE, Plaintiff/Appellant,
CONTINENTAL CASUALTY CO. d/b/a
CNA INSURANCE COMPANY, an Illinois
Corporation and TRANSPORTATION
INSURANCE COMPANY, an Illinois
Corporation, Defendant/Appellees, and
KERR GROUP, INC. Defendant.
¶1 Pursuant to 12 O.S. 1991, § 1803.1, the following persons are hereby appointed by category to positions on the Dispute Resolution Advisory Board:
James M. Cox
Midwest City, Oklahoma
Law Enforcement
Carol M. Hansen
Oklahoma City, Oklahoma
The Judiciary
ORDER
Michael T. Oakley
Oklahoma City, Oklahoma
Department
of Corrections
The application of the Oklahoma Association
of Defense Counsel to file an amicus curiae
brief is denied.
Thornton Wright, Jr.
Oklahoma City, Oklahoma
Legal Profession
No. 99,940. June 26, 2006
It is hereby ordered that both petitions for
rehearing filed by the defendant/appellees
and the plaintiff/appellant are denied. The
parties argument that the opinion requires that
a bad faith tort action may only be maintained
after an order of the Workers’ Compensation
Court has been certified for enforcement in the
district court pursuant to 85 O.S. 2001 §42(A) is
without merit. The opinion clearly provides
that it is the refusal of the workers’ compensation insurer to timely pay an award as finally
ordered by the Workers’ Compensation Court
that gives rise to a common law action for bad
Vol. 77 — No. 19 — 7/15/2006
Jonna S. Geitgey
Social Service Agencies
Oklahoma City, Oklahoma
Stan Foster
Consumer Organizations
Oklahoma City, Oklahoma
Lisa Yates
Business Organizations
Oklahoma City, Oklahoma
Ted Roberts
Norman, Oklahoma
Cathy Stocker
Enid, Oklahoma
Ralph Triplett, Jr.
Woodward, Oklahoma
The Oklahoma Bar Journal
Academic Community
District Attorney
Local Government
1969
Jane F. Wheeler
State Government
Oklahoma City, Oklahoma
Terry Winn
Chickasha, Oklahoma
Member At Large
Christi Winkle Roach
Member At Large
Oklahoma City, Oklahoma
Bobbie Burbridge Lane
Member At Large
Oklahoma City, Oklahoma
June W. Morgan
Norman, Oklahoma
Retired Citizens
Michael D. Evans
Oklahoma City, OK
Ex Officio
¶2 These appointments shall be effective July
1, 2006, and shall expire June 30, 2007, but the
members shall continue to hold office until their
successors are appointed and qualified.
¶3 Pursuant to Rule 5, part B of the Rules and
Procedures for the Dispute Resolution Act,
James M. Cox of Midwest City, Oklahoma, is
designated by the Supreme Court as Chairperson of the Dispute Resolution Advisory Board
for the term beginning July 1, 2006, and ending
June 30, 2007.
DONE BY ORDER OF THE SUPREME
COURT IN CONFERENCE this 19th day of
June, 2006.
/s/
Joseph M. Watt
CHIEF JUSTICE
¶4 WATT, C.J., WINCHESTER, V.C.J.,
LAVENDER,
HARGRAVE,
KAUGER,
EDMONDSON, TAYLOR and COLBERT, JJ.,
concur.
¶5 OPALA, J., not participating.
2006 OK 46
BRONSON TRAILERS & TRUCKS,
CREDIT GENERAL INSURANCE
COMPANY, Petitioners/CounterRespondents, v. RICHARD D. NEWMAN,
SR., Respondent/Counter-Petitioner and
THE WORKERS’ COMPENSATION
COURT, Respondent.
No. 101,458. June 27, 2006
ON CERTIORARI TO THE COURT OF
CIVIL APPEALS, DIV. IV
¶0 A Workers’ Compensation Court (WCC)
judge awarded claimant benefits in accordance
with the provisions of 85 O.S. Supp. 1997 § 16
(D).1 The trial tribunal, following completion of
claimant’s court-ordered vocational rehabilita1970
tion services, re-evaluated his compensation status and determined him to be permanently partially disabled. Claimant urges the trial judge’s
re-evaluation of his status was an impermissible
collateral attack on a final order that implicitly
determined him to be permanently totally disabled. The Court of Civil Appeals (COCA) sustained the trial judge’s order. On certiorari
granted upon claimant’s petition,
THE COURT OF CIVIL APPEALS’
OPINION IS VACATED AND THE TRIAL
JUDGE’S ORDER IS SUSTAINED
Tracy Pierce Nester, Gary D. Long, Oklahoma
City, for Petitioners/Counter-Respondents.
Duke Halley, Woodward, Oklahoma, for
Respondent/Counter-Petitioner.2
Opala, J.
¶1 Today’s certiorari presses two questions for
our decision: (1) Is a trial judge’s initial award of
benefits, made in accordance with the provisions of 85 O.S. Supp. 1997 § 16 (D),3 a final order
that a worker is permanently totally disabled?
and (2) Did the trial judge impermissibly terminate that order? We answer both questions in the
negative.
I.
ANATOMY OF THE LITIGATION
¶2 Claimant (claimant or Newman), a general
repairman,4 sustained an accidental on-the-job
injury to his right hand (and consequential
injury to his left foot)5 while he was employed
by Bronson Trailers and Trucks (together with
General Credit Insurance Company to be
known as employer). Employer did not dispute
the injury arose out of claimant’s employment
and paid temporary total disability (TTD) benefits and medical expenses. Claimant returned to
work but testified he was unable to continue on
a permanent basis because of persistent problems with his affected limbs. Newman, who is
illiterate, claimed he could no longer perform
manual labor — the only work for which he is
qualified — and sought permanent total disability (PTD) benefits.
¶3 On 28 December 2001 the trial judge
awarded claimant what here will be referred to
as § 16 (D) benefits (compensation commensurate with TTD benefits that is to be paid during
the period of vocational rehabilitation with a
view to evaluating permanent total disability),
in accordance with the terms of 85 O.S. Supp.
1997§ 16 (D).6 The judge “reserved” (withheld)
for a future date determination of claimant’s
permanent disability status, pending his com-
The Oklahoma Bar Journal
Vol. 77 — No. 19 — 7/15/2006
pletion of a court-ordered rehabilitation program. Following a hearing on 27 May 2004 to reevaluate claimant’s status, the trial judge found
Newman to be permanently partially disabled.7
Both parties sought review of this order. COCA,
by an unpublished opinion, sustained the trial
judge’s order.8 Claimant alone seeks certiorari
review.
II.
CLAIMANT’S CERTIORARI ARGUMENTS
¶4 Newman’s certiorari petition urges the trial
judge’s 2001 order that awards him benefits in
accordance with the provisions of § 16 (D) is a
final determination that he is permanently totally disabled unless he can be rehabilitated. The
2004 order that finds him to be permanently partially disabled is, hence, an impermissible collateral attack upon the earlier order, which violates
the principle of res judicata.9 Claimant asserts
that his status remains that of a permanently
totally disabled person unless his vocational
rehabilitation is 1) successful or 2) unsuccessful
because of acts of claimant.10
III.
STANDARD OF REVIEW
¶5 The first question presented on certiorari
calls for resolution of a legal question. Review of
contested law is governed by a de novo standard.11 In its re-examination of the trial tribunal’s
legal rulings an appellate court exercises plenary, independent and nondeferential authority.12
The second issue pressed here deals with a question of fact. A trial judge’s non-jurisdictional
finding may not be disturbed on review if supported by competent proof.13 Record proof, on
the basis of which the trier could have reached a
contrary conclusion, has no legal impact upon
the review process by which a WCC’s finding is
tested.14 It is only the absence of competent evidence that makes the tribunal’s decision erroneous (as a matter of law) and hence amenable
to appellate vacation.15
IV.
A.
AN INITIAL AWARD OF BENEFITS IN
ACCORDANCE WITH THE PROVISIONS
OF § 16(D) IS A TEMPORARY
ADJUDICATION THAT STANDS SUBJECT
TO CLAIMANT’S RE-EVALUATION
FOLLOWING REHABILITATION
¶6 According to Newman’s first assertion, it is
implicit in law that the 2001 order was a final
adjudication of his permanent total disablity.16
Vol. 77 — No. 19 — 7/15/2006
This must be so because the order (1) awarded
him § 16 (D) benefits and (2) does not adjudicate
his status to be that of being permanently partially disabled. Claimant cites language in Mangrum v. Fensco, Inc.17 for support of his position
that an award of §16 (D) benefits “necessitates
an initial determination that vocational rehabilitation is practicable and that the worker is at that
time permanently and totally disabled.”18
According to claimant, his legal status must
hence be recognized as that of permanent total
disability.
¶7 Newman’s reasoning concerning his status
is faulty. Simply because one is not adjudicated
permanently partially disabled does not ipso
facto make a worker permanently totally disabled. Any reliance on Mangram is likewise misplaced. That case teaches a compensation
claimant who was previously adjudicated permanently partially disabled is not entitled to
§ 16 (D) benefits.19 Claimant was not initially
determined here to be permanently partially
disabled. Mangrum’s holding is inapplicable to
the facts presented in today’s certiorari.
¶8 Neither may some isolated passages of
Mangrum’s text be read to support claimant’s
position — that a § 16 (D) award is a final order
determining one to be permanently partially (or
totally) disabled. A thorough reading of its text
reveals that under the provisions of § 16 (D)
claimant’s status is transitory. According to
Mangrum, the initial “award of permanent total
disability is essentially ‘temporary’, in that it is
subject to review following vocational rehabilitation . . .”20 The sentence cited by claimant in
support of his contrary position — that an
award of § 16 (D) benefits “[n]ecessitates an initial determination that vocational rehabilitation
is practicable and that the worker is at the time
permanently and totally disabled”21 (emphasis
supplied) — is also impertinent to his legal position. Its reference to “at the time” explicitly
denotes the temporary nature of a §16 (D)
benefits award.
¶9 The goal of any inquiry into the meaning of
a legislative enactment is to ascertain and follow
its legislative intent.22 It is presumed that legislative intent is expressed in a statute’s text and
that the law-making body intended that which it
expressed.23 Where the statute is plain and
unambiguous, there is no room for judicial construction which would extend its ambit beyond
the scope of the plain and unambiguous language.24 A statute is to be construed as a whole
in light of its general purpose and objective.25
The Oklahoma Bar Journal
1971
¶10 The terms of § 16 (A) plainly contemplate
claimant’s further evaluation by the trial court
will follow to determine his/her permanent disability status. Its text reveals that a claimant is
not adjudicated permanently totally disabled
until he/she has been evaluated as to “the practicability of restoration to gainful employment
through vocational rehabilitation services or
training.”26 The terms of § 16 (D)27 do not refer to
one’s permanent disability status but address
the rate of compensation a claimant is to receive
during the rehabilitation period. These provisions are free of ambiguity. When read as a
whole, all parts of the section clearly express
that a claimant who seeks § 16 (D) benefits is
only initially considered to be permanently
totally disabled during the period of rehabilitation, but the final determination of one’s permanent disability status is made at the end of that
period.28
concluded the trial judge’s order is supported by
competent evidence.31
¶14 The record reveals claimant presented evidence that his unsuccessful-rehabilitation outcome was due to the inadequacy of the vocational-rehabilitation services that were provided
him.32 Claimant neither requested a finding of
fact on the issue of the adequacy of the rehabilitation services nor did he seek additional
services. The sole use of the failure-of-services
argument was limited to supporting his status
as permanently totally disabled.
¶11 In short, a trial judge’s initial award of benefits in accordance with the provisions of
§ 16 (D) is a temporary determination of a claimant’s
compensation status pending re-evaluation after
vocational rehabilitation is completed. It is not a final
adjudication of a worker’s permanent disability status. This is plainly revealed by the statute’s text
and supported by the disability benefits scheme
contained in the Workers’ Compensation Act.29
¶15 We agree with COCA. The trial tribunal
found Newman participated in the courtordered rehabilitation program.33 Its order did
not include a finding of fact dealing with the
quality of services provided him. When rehabilitation services prove unsuccessful one may not,
as a matter of law, draw the conclusion that a
worker is hence permanently totally disabled.
The trial tribunal’s order found “the claimant is
not permanently and totally disabled solely as a
result of this accident.”34 Neither do the provisions of § 16 (A)35 or (D)36 restrict the trial tribunal’s authority. After evaluating the proof presented, the trial judge is free to find a claimant is
only permanently partially disabled. Because
there is here competent evidence to support the
trial judge’s finding, we must sustain her ruling.
B.
V.
THE TRIAL JUDGE DID NOT ERR WHEN,
AFTER CLAIMANT COMPLETED
REHABILITATION, HE WAS REEVALUATED AND ADJUDICATED
PERMANENTLY PARTIALLY DISABLED
SUMMARY
¶12 Newman next urges that his § 16 (D) benefits may be terminated only when the rehabilitation is (1) successful or (2) unsuccessful owing
to claimant’s own acts. He contends the services
provided him were far short of those to be rendered in accordance with the trial judge’s order.
It was because of this, and not due to any action
or inaction on his part, that his rehabilitation
was unsuccessful. Because it was unsuccessful
there is no basis to change his status from that of
one permanently totally disabled to that of permanently partially disabled. The trial judge
hence erred when she determined claimant to be
permanently partially disabled.
¶13 Although COCA agreed that the rehabilitation services were lacking, it noted that the
trial tribunal’s order made no finding of fact
about this matter.30 It hence concluded this did
not serve as an adequate basis on which to predicate trial error. COCA reviewed the record and
1972
¶16 A WCC’s initial award of § 16 (D) benefits
is not a final order upon claimant’s permanent
disability status. It is an interim disposition that
a worker is at that time temporarily totally disabled and entitled to benefits at the TTD rate
during the period a worker actively participates
in and undergoes the court-ordered retraining
or job placement program. This status is temporary. A claimant’s permanent compensation status is subject to re-evaluation following completion of the rehabilitation in accordance with the
terms of § 16 (D). The trial judge erred here
neither in re-evaluating claimant’s status nor
in finding him to be permanently partially
disabled.
¶17 ALL JUSTICES CONCUR.
1. The terms of 85 O.S. Supp. 1997 §16 (D) — the provision in effect
at the time of claimant’s accident — provide:
“During the period when an employee is actively participating
in a retraining or job placement program for purposes of evaluating permanent total disability status, the employee shall be
entitled to receive benefits at the same rate as the employee’s
temporary total disability benefits computed pursuant to Section
22 of this title.” ***
2. Identified herein are only those counsel for the parties whose
names appear on the certiorari briefs.
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Vol. 77 — No. 19 — 7/15/2006
3. For the terms of § 16 (D) see supra note 1.
4. Although claimant has worked as a mechanic he has no specific
training in that area. We, hence, refer to his work as that of a general
repairman.
5. During surgery, Newman’s physician noted smashed arteries in
his hand, the result of repetitive use of power tools at work. To repair
this damage, an additional surgery was performed. Blood vessels from
claimant’s left foot were transplanted to his right hand, resulting in a
consequential injury to his left foot.
6. The judge’s order provided “claimant is awarded 16 (D) benefits
to . . . continue until claimant succeeds or fails in the program or similar type described . . .”
For the terms of § 16 (D) see supra note 1.
7. An earlier review proceeding was initiated by the employer. The
issue before COCA was whether the trial judge correctly determined
that claimant may be permanently totally disabled and entitled to § 16
(D) benefits. COCA, in an unpublished opinion, sustained the decision
of the three-judge review panel that affirmed the trial tribunal’s order.
These issues are not before the court today.
The trial tribunal’s order was issued 21 October 2004 and a nunc
pro tunc order followed on 2 November 2004.
8. Employer presented two issues before COCA; neither is before
the court today: (1) the trial judge improperly denied it credit for overpayment of § 16(D) benefits and (2) the trial tribunal erroneously
awarded § 16(D) benefits to be paid to a date beyond that set for trial.
COCA sustained the trial judge’s order on all issues presented for
review. Resolution of the latter issue was bottomed on the date the
order nunc pro tunc was filed, not on the date the trial tribunal conducted its hearing.
9. Claimant employs the commonly-used term “res judicata” to
denote the binding effect an adjudication will have on all other dispositions. The precise legal term of art here is issue preclusion. Its three
essential elements include: (1) an earlier decision on the issue, (2) a
final judgment on the merits and (3) a cause dealing with the same
parties or those in privity with the original parties.
10. Although claimant’s briefs do not so specify, we understand
that portion of his argument dealing with “unsuccessful rehabilitation
due to acts of claimant” to be referencing the terms of § 16 (A). Its
terms provide:
*** “No person shall be adjudicated to be permanently and totally disabled unless first having been evaluated as to the practicability of restoration to gainful employment through vocational
rehabilitation services or training. If an employee claiming permanent total disability status unreasonably refuses to be evaluated or to accept vocational rehabilitation services or training,
permanent total disability benefits shall not be awarded during
the period of such refusal, and the employee shall be limited to
permanent partial disability benefits only.” ***
11. Arrow Tool & Guage v. Mead, 2000 OK 86, ¶ 6, 16 P.3d 1120,
1122-23; Neil Acquisition L.L.C. v. Wingrod Investment Corp., 1996
OK 125, ¶ 5, 932 P.2d 1100, 1103; Brown v. Nicholson, 1997 OK 32, ¶ 5,
935 P.2d 319, 321.
12. Arrow Tool, supra note 11, at ¶ 6 at 1122-23; Neil Acquisition,
supra note 11 at ¶ 5 at 1103; Kluver v. Weatherford Hosp. Auth., 1993
OK 85, ¶ 14, 859 P.2d 1081, 1084.
13. Parks v. Norman Munc. Hosp., 1984 OK 53, ¶ 12, 684 P.2d 548,
549-52.
14. Lanman v Oklahoma County Sheriff’s Office, 1998 OK 37, ¶ 6,
958 P.2d 795, 798 (citing Thomas v. Keith Hensel Optical Labs, 1982 OK
120, ¶ 14, 653 P.2d 201, 203).
15. Lanman, supra note 14 at ¶ 6 at 798 (citing Parks v. Norman
Munc. Hosp., 1984 OK 53, ¶ 12, 684 P.2d 548, 549-52).
16. The trial judge’s 2001 order awards § 16 (D) benefits. It makes
no finding about claimant’s compensation status.
17. Mangrum v. Fensco, Inc., 1999 OK 78, 989 P.2d 461.
18. Mangrum, supra note 17 at ¶ 6 at 463.
19. A claimant’s permanent partial disability status is evaluated
only once by the WCC. Mangrum, supra note 17 at ¶ 8 at 463. There is
no re-evaluation of a worker’s permanent partial disability status.
Mangrum, supra note 17 at ¶ 8 at 463. The provisions of § 16 (D) plainly reveal that its terms apply only to those undergoing rehabilitation
for the purposes of evaluating permanent total disability status. Mangrum, supra note 17 at ¶ 8 at 463.
20. Mangrum, supra note 17 at ¶ 11 at 464 (citing City of Norman v.
Steves, 1998 OK CIV APP 81, 962 P.2d 655, 657).
21. Mangrum, supra note 17 at ¶ 6 at 473.
22. Cooper v. State ex rel. Dep’t of Public Safety, 1996 OK 49, ¶ 10,
917 P.2d 466, 468.
23. Nealis v. Baird, 1999 OK 98, ¶ 55, 996 P.2d 438, 460.
Vol. 77 — No. 19 — 7/15/2006
24. Ross v. Peters, 1993 OK 8, n.17, 846 P.2d 1107, 1109, n.17.
TRW/Reda Pump v. Brewington, 1992 OK 31, ¶ 5, 829 P.2d 15, 20.
Forston v. Heisler, 1961 OK 198, ¶ 11, 363 P.2d 949, 951.
25. Villines v. Szczerpanski, 2005 OK 63, ¶9, 122 P.3d 466, 471(citing McNeil v. City of Tulsa, 1998 OK 2, ¶ 11, 953 P.2d 329, 332).
26. For the terms of § 16 (A) see supra note 10.
27. For the terms of § 16 (D) see supra note 1.
28. Mangrum, supra note 17 at ¶ 10 at 464 (citing Steves, supra note
20 at ¶ 9 at 657).
29. The Workers’ Compensation Act, 85 O.S. 2001 § 1 et seq.
30. In his supplemental brief, respondent states, “the Court of Civil
Appeals found the “Claimant is illiterate and that ‘no actual retraining
or educational benefits were provided . . . .’” (Respondent’s supplemental brief, p. 4) COCA, as an intermediate court of appellate review,
makes no findings of fact. That is solely the trial tribunal’s function. A
trial judge’s findings of fact are binding and conclusive in review proceedings unless they lack support in competent evidence. Parks, supra
note 13 at ¶ 12 at 551.
31. COCA opinion, p. 10.
32. The 2001 order required claimant to “participate in the program described as Option 6 or a similar type program, . . .” This program consists of twenty (20) hours of assessment and job development
and/or supported employment. The latter is described as four-to-six
weeks (estimating forty hours per week) of training, job coaching, and
employee support. (Amerihab report, 20 November 2001, record, p.
132). Program counselors travel throughout Oklahoma to achieve
“competitive employment by helping to match the client’s abilities
and interests with the needs of local businesses.” (Amerihab report, 20
November 2001, record, p. 132). This program was discontinued
before the order of mandate was issued. No similar services were then
available. (record, exhibit 2, deposition of Amerihab owner, p. 15). In
February 2003, the court ordered Amerihab “to reevaluate claimant
and . . . to provide vocational rehabilitation services . . ., in an attempt
to return claimant to employment.” (record, p. 216)
Claimant argued those services provided by Amerihab were primarily job-search related; re-training and vocational rehabilitation
programs were minimal to non-existent.
33. Trial judge’s 21 October 2004 order. (record, p. 243).
34. Trial judge’s 21 October 2004 order (record, p.242)
35. For the terms of § 16 (A) see supra note 10.
36. For the terms of § 16 (D) see supra note 1.
2006 OK 47
PHILLIP ROGER LIERLY and JOE BILL
LIERLY, Appellees, v. TIDEWATER
PETROLEUM CORPORATION, Appellant.
No. 100,844. June 27, 2006
AS CORRECTED: June 27, 2006
ON WRIT OF CERTIORARI TO THE
COURT OF CIVIL APPEALS, DIVISION II
¶0 Phillip and Joe Bill Lierly filed this malicious prosecution action against Tidewater
Petroleum Corporation. The Lierlys
alleged injury caused by an earlier suit for
injunctive relief that Tidewater filed
against them. Jury trial was had on the
malicious prosecution claim, the Honorable April Sellers-White, presiding. In the
first phase, the jury found that there was
clear and convincing evidence that the
defendant acted in reckless disregard for
the rights of plaintiffs when it filed the suit
for injunctive relief and that the Lierlys
suffered actual damages in the amount of
$11,000.00. In the second stage, the jury
determined the Lierlys were entitled to
The Oklahoma Bar Journal
1973
punitive damages in the amount of
$11,000.00. The district court entered judgment on the jury verdict in favor of the
Lierlys and overruled Tidewater’s motion
for new trial. Tidewater appealed. The
Court of Civil Appeals affirmed. We previously granted appellant’s petition for writ
of certiorari.
OPINION OF THE COURT OF CIVIL
APPEALS VACATED;
ORDER OF THE DISTRICT COURT
DENYING NEW TRIAL REVERSED;
DISTRICT COURT JUDGMENT ON JURY
VERDICT AFFIRMED IN PART AND
REVERSED IN PART; CAUSE REMANDED
TO THE DISTRICT COURT FOR FURTHER
PROCEEDINGS CONSISTENT WITH THIS
OPINION.
Tom C. Lane, Sr., Sapulpa, Oklahoma, for
appellees.
Sam T. Allen, IV, Sapulpa, Oklahoma, for
appellant.
TAYLOR, J.
¶1 Appellant presents two questions of law
for certiorari review: 1) Is an oil and gas lessee
subject to liability for malicious prosecution
for seeking an injunction against the surface
owner who interferes with lessee’s entry upon
the land at a specific location? and 2) Is a
defendant entitled to present closing argument
on the amount of punitive damages in the second stage of a jury trial even though the plaintiff waives closing argument? We answer both
questions in the affirmative. We hold the district court erred in refusing to allow defendant/appellant to make closing argument to
the jury regarding the amount of punitive
damages in the second stage of the jury trial.
Accordingly, we reverse the district court’s
order denying defendant/appellant a new trial
and that part of the district court’s judgment
awarding plaintiffs/appellees $11,000.00 for
punitive damages. We remand this cause to the
district court for a new second stage trial
on the amount of punitive damages to be
awarded plaintiffs/appellees.
I. Facts and Proceedings Below
¶2 The evidence in the appellate record
reveals the following pertinent facts. In May,
1994, Bobby G. Roberts (Roberts) purchased
some thirteen oil leases and the surface rights
to four tracts of land in Creek County from the
1974
L. B. Jackson Production Company under the
terms of an Amended Plan for Reorganization
confirmed in January, 1990, by the United
States Bankruptcy Court for the Northern District of Oklahoma. The Emma Hengst tract and
lease were included in the purchase. In June,
1994, Roberts assigned these surface rights and
oil leases to his corporation, Tidewater
Petroleum Corporation, appellant (Tidewater).
Roberts is the principal owner, officer and
manager of Tidewater.
¶3 This litigation involves the Emma Hengst
tract and oil lease. The eighty-acre Emma
Hengst tract is divided by Polecat Creek. The
Emma Hengst lease has two producing oil
wells. One well and tank battery are located on
the west side of Polecat Creek and one well is
on the east side. The L. B. Jackson Production
Company owned the surface and operated the
oil wells on the Emma Hengst tract for more
than thirty years. The Jackson company
accessed the oil wells through the gate and
road on the neighboring Robbins’ property on
the east side of the Emma Hengst tract. While
Tidewater owned the surface and operated the
oil wells, it continued to access the Emma
Hengst tract from the east side using the gate
and road on the Robbins’ property.
¶4 In April, 1997, Tidewater sold the surface
rights to the Emma Hengst tract to Phillip
Roger Lierly and Reesa Kay Lierly, husband
and wife, and Joe Bill Lierly and Kerry Dawn
Lierly, husband and wife, except a right-ofway on the west side of the tract. Tidewater
continued to access the well on the east side of
the Emma Hengst tract through the gate and
road on the Robbins’ property.
¶5 State Highway 117 borders the south edge
of the Emma Hengst tract. Sometime earlier,
the Oklahoma Highway Department constructed a driveway across the highway right
of way and a gate for entry onto the Emma
Hengst tract. However, the tract was not accessible from Highway 117 because the land
dropped off some fifteen feet just inside the
gate. Neither the Jackson company nor
Tidewater improved the land for entry off
Highway 117.
¶6 Shortly after purchasing the Emma
Hengst tract, Phillip Roger Lierly and Joe Bill
Lierly, appellees (Lierlys), started to improve
the land for access off Highway 117. Tidewater
asked the Lierlys’ permission to access the
wells off Highway 117. The Lierlys asked Tide-
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Vol. 77 — No. 19 — 7/15/2006
water to share in the cost of constructing the
new road. Tidewater refused to pay any of the
road construction costs.
¶7 In July, 1997, Tidewater filed suit in the
district court alleging that entry off Highway
117 is the only reasonable way to enter and exit
the east side of the Emma Hengst tract and
asking that the Lierlys be temporarily and permanently enjoined from interfering with Tidewater’s access to the Emma Hengst lease off
Highway 117.1 Upon a bench trial, the district
judge, the Honorable John Maley, found Tidewater had access to its wells through the Robbins’ property and should not be at liberty to
enter the Lierlys’ property at will from the
south entrance nor use the road built by the
Lierlys. The district court denied Tidewater’s
request for a temporary injunction and barred
it from using the roadway built by the Lierlys.2
The district court also denied the Lierlys’
motion for attorney fees.
¶8 In June, 1999, the Lierlys filed a petition in
the district court alleging that Tidewater filed
the suit for injunctive relief with malicious and
total disregard of their rights. The Lierlys
sought actual and punitive damages. Tidewater counterclaimed, alleging the Lierlys’ claim
was a sham and nothing more than a thinly
veiled attempt to wire around the denial of
Lierlys’ motion for attorney fees in the suit for
injunction. Tidewater sought damages for the
expense of defending against this malicious
prosecution claim and punitive damages. As
affirmative defenses, Tidewater asserted that
Lierlys’ malicious prosecution claim is barred
by the statute of limitations and by the doctrines of res judicata, issue preclusion and laches because the Lierlys did not appeal the trial
court’s denial of their motion for attorney fees
in the suit for injunction.
¶9 This case was tried to a jury in September,
2003. Roberts testified that he has access to
operate the Emma Hengst lease through the
Robbins’ property although Mr. Robbins did
not want to execute an easement; the Lierlys
would not allow Roberts to access the wells off
Highway 117; the Lierlys asked him to pay half
of the costs of a roadway needed for access off
Highway 117; he did not attempt to negotiate
with the Lierlys for access off Highway 117; he
refused to pay any money toward the cost of
the new roadway for access off Highway 117;
he knows that Tidewater, as the oil and gas
well operator, is responsible for constructing a
Vol. 77 — No. 19 — 7/15/2006
lease road across the property to the wells; the
Lierlys blocked the gate so he could not exit
the property onto Highway 117; he has no malice toward the Lierlys; he filed the suit for
injunctive relief to secure access to the wells
from Highway 117; and the allegations in the
injunction petition — that the Lierlys denied
him access to the property to operate the wells
and denied him ingress or egress by blocking
the lease road block — were not truthful. The
Lierlys gave testimony regarding the facts that
gave rise to their malicious prosecution claim
and their damages for loss of work, embarrassment and personal suffering.
¶10 At the conclusion of the first stage of the
trial, the jury returned a unanimous verdict in
favor of the Lierlys. The jury found: 1) the dollar amount of Lierlys’ actual damages is the
sum of $11,000.00; 2) the evidence that Tidewater acted in reckless disregard of the rights of
others is clear and convincing; and 3) the
evidence that Tidewater acted intentionally
and with malice toward others is not clear and
convincing.
¶11 The trial court opened the second stage
of the trial by instructing the jury on the factors
to be considered in fixing the amount of punitive damages, if any, to punish Tidewater for
acting with reckless disregard for the rights of
the Lierlys. The trial court then asked for closing arguments. Lierlys’ counsel waived closing
argument. Tidewater’s counsel asked to make
a closing argument and Lierlys’ counsel objected. The trial court denied the request and Tidewater objected. Whereupon the jury began to
deliberate on the amount of punitive damages.
Nine minutes later the jury notified the bailiff
they had a verdict. With nine signatures, the
jury fixed the punitive damages in the amount
of $11,000.00.
¶12 On November 25, 2003, the district court
entered judgment on the jury verdict in favor
of the Lierlys. On December 1, 2003, Tidewater
moved for a new trial on the bases that: 1) the
court erred as a matter of law by overruling
Tidewater’s demurrer to the evidence and
motion for directed verdict; 2) the court erred
as a matter of law by instructing the jury on
punitive damages; 3) the court abused its discretion in quashing the subpoena to District
Judge John Maley and not allowing Tidewater
to call Judge Maley as a witness; 4) the court
abused its discretion in refusing to allow Tidewater’s attorney to make closing argument in
The Oklahoma Bar Journal
1975
the second stage of the jury trial; and 5) the evidence is insufficient to support either the actual or punitive damages awarded by the jury.
On May 25, 2004, the district court denied the
new trial motion.
¶13 Tidewater timely appealed the judgment
on the jury verdict and the denial of the motion
for new trial. Tidewater’s petition in error
raised the same issues presented in its motion
for new trial. The Court of Civil Appeals made
a ruling on all issues raised by Tidewater.
Resolving each issue against Tidewater, the
Court of Civil Appeals affirmed the district
court’s order overruling the motion for new
trial.3
¶14 Tidewater preserved two issues in its
petition for writ of certiorari:4 1) whether an oil
and gas lessee who seeks an injunction against
the surface owner for interfering with the
lessee’s entry upon the land at a specific location may be liable for damages for malicious
prosecution; and 2) whether a defendant is
entitled to present closing argument
concerning the amount of punitive damages in
the second stage of a jury trial even though the
plaintiff waived closing argument.
II. Standard of Review
¶15 Tidewater appealed from the order
denying a new trial and the judgment on the
jury verdict. A trial court’s denial of a new trial
is reviewed for abuse of discretion. Capshaw v.
Gulf Insurance Co., 2005 OK 5, ¶6, 107 P.3d 595,
599. Because the trial court has broad discretion in ruling on a motion for new trial, the
denial of a new trial will be reversed only upon
clear error with respect to a pure and unmixed
question of law. Id. at ¶7, 107 P.3d at 600. A
judgment on a jury verdict is reviewed for
competent evidence reasonably tending to
support the verdict and for the absence of prejudicial error in the jury instructions and legal
rulings. Head v. McCracken, 2004 OK 84, ¶2, 102
P.3d 670, 673-674. A reviewing court may not
set aside a jury verdict or grant a new trial for
misdirection of the jury or error in any matter
of pleading or procedure unless the error has
probably resulted in a miscarriage of justice
or constitutes a substantial violation of a constitutional or statutory right. 20 O.S.2001,
§3001.1.
¶16 This case presents two questions of law
for certiorari review. Questions of law are
reviewed de novo. De novo review of a lower
1976
court’s legal ruling is plenary, independent
and nondeferential. Christian v. Gray, 2003 OK
10, ¶¶43-44, 65 P.3d 591, 608-609. In reviewing
this case, we initially examine the trial court’s
legal rulings without deference to the trial
court. If we find error in the trial court’s rulings on a question of law, we must then determine that the legal error has resulted in a miscarriage of justice or a substantial violation of a
statutory right before we may set aside the jury
verdict and grant a new trial.
III. Tidewater’s Liability for Malicious
Prosecution in Seeking Injunctive Relief
¶17 On certiorari, Tidewater contends that
an oil and gas lessee who seeks an injunction
against the surface owner for interfering with
the lessee’s entry upon the land at a specific
location is not liable for damages for malicious
prosecution. The essence of this contention is
that the trial court erred in submitting the
malicious prosecution case to the jury.
¶18 As authority for this contention, Tidewater relies on Dulaney v. Okla. State Dept. Of
Health, 1993 OK 113, 868 P.2d 676, and Reeves v.
Agee, 1989 OK 25, ¶12, 769 P.2d 745. Dulaney
recognized that a mineral interest owner has a
right to enter land and to prospect for and take
oil and gas and that this ownership right
includes the right to ingress and egress.
Dulaney at ¶8, 868 P.2d at 680. Reeves enumerated the five essential elements of malicious
prosecution: 1) defendant’s filing a former
action, 2) its successful termination in favor of
plaintiff, 3) defendant’s want of probable cause
for pressing the former action against plaintiff,
4) the presence of malice in defendant’s conduct, and 5) damages. Reeves at ¶12, 769 P.2d at
752.
¶19 To support this contention, Tidewater
argues that as the oil and gas lessee, it has the
right to reasonable entry to access the oil wells;
entry off Highway 117 is reasonable; therefore
it had probable cause to believe the access it
sought was reasonable; where there is probable cause there can be no malice; and without
the element of malice there can be no malicious
prosecution. This argument intertwines the
legal concept of a lessee’s right of access with
that of probable cause and malice in a malicious prosecution claim. The argument is
flawed in that an oil and gas lessee does not
have a common-law right to enter a tract of
land at each and every available point of entry,
and the reasonableness of a point of entry onto
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Vol. 77 — No. 19 — 7/15/2006
a tract of land, alone, does not establish probable cause to seek injunctive relief.
¶20 Regarding the legal concept of a lessee’s
right of access, the common law has long recognized that an oil and gas lease carries with it
the right to use the land as may be necessary to
perform the obligations under the lease,
Anschutz v. Sanders, 1987 OK 11, ¶5, 734 P.2d
1290, 1291; and, that an oil and gas lessee may
enter and occupy the surface of the land to the
extent reasonably necessary for exploring and
marketing oil and gas. Devon Drilling Co. V.
Ginder, 1970 OK 51, ¶11, 467 P.2d 470, 472-473.
The common-law right of access for drilling
and production operations is limited not only
to the extent it is reasonably necessary but
also as provided in the Oklahoma Surface
Damages Act, 52 O.S.2001, §§318.2 – 318.9.
Anschutz v. Sanders, at ¶6, 734 P.2d at 1291.
Under the surface damages statutory regime,
the oil and gas lessee must engage in negotiations with the surface owner and seek an
appraisal of surface damages, id., and the surface owner is entitled to damages caused by
the reasonable use of the surface by the oil and
gas lessee. Davis Oil Co. v. Cloud, 1986 OK 73,
¶16, 766 P.2d 1347, 1351. Accordingly, a lessee
does not have a common-law right to access an
oil or gas well at any specific point of entry
regardless of the desires of the surface owner.
¶21 Tidewater’s belief that entry off Highway 117 was reasonable did not necessarily
constitute probable cause for instituting a suit
for injunctive relief. Probable cause for the
institution of a legal proceeding is the honest
belief on the part of the instigator that the
claim is founded on facts sufficiently strong to
warrant the average person in believing the
claim to be true. Lewis v. Crystal Gas Co., 1975
OK 26, ¶14, 532 P.2d 431, 433. Probable cause
for the institution of the earlier legal proceeding is a complete defense to a subsequent malicious prosecution claim. Page v. Rose, 1975 OK
176, ¶16, 546 P.2d 617, 620. In a malicious prosecution claim, the plaintiff has the burden to
prove the lack of probable cause. Id.
¶22 The Lierlys proved lack of probable
cause with Roberts’ testimony. The injunction
petition alleged that the Lierlys blocked Tidewater’s access through the Robbins’ property
and prevented Tidewater from using a lease
road to access the oil well, which Roberts testified were not truthful allegations. Roberts also
testified that he had access to the Emma
Vol. 77 — No. 19 — 7/15/2006
Hengst lease through the Robbins’ property
when he caused the injunction petition to be
filed. In other words, Roberts knew he would
not be injured if an injunction was not granted.
Sunray Oil Co. v. Cortez Oil Co., 1941 OK 77, 112
P.2d 792, Syllabus by the Court, No. 4 (concluding that a petitioner, to be entitled to injunctive
relief, must demonstrate there is a reasonable
probability that injury will result if the
injunction is not granted).
¶23 Roberts’ testimony shows the claim for
injunctive relief was grounded in untruthful
allegations and was not founded on facts
strong enough to warrant the average person’s
belief in the claim. Roberts’ testimony is sufficient to establish a lack of probable cause and
give rise to an inference of malice. Empire Gas
& Fuel Co. v. Wainscott, 1923 OK 334, ¶33, 216 P.
141, 145 (teaching that it is not necessary to
prove malice by express testimony and that the
finder of fact may draw an inference of malice
from a showing of lack of probable cause).
¶24 Accordingly, we conclude that an oil and
gas lessee who seeks an injunction against the
surface owner for interfering with the lessee’s
entry upon the land at a specific location may
be liable for damages for malicious prosecution. We find there was no prejudicial error in
submitting the malicious prosecution case to
the jury and there is competent evidence supporting the jury verdict on the merits of the
malicious prosecution claim. We affirm the
trial court’s judgment on the jury verdict in the
first stage of the jury trial.
IV. Closing Arguments on the Amount of
Punitive Damages
¶25 The remaining question presented for
certiorari review is whether a defendant is
entitled to present closing argument on the
question of punitive damages in the second
stage of a jury trial. Tidewater contends it was
an abuse of discretion for the trial judge to
deny its request to present closing argument to
the jury on the fact question of the amount of
punitive damages. We agree.
¶26 The right of a litigant to be heard in presenting evidence of witnesses and argument of
counsel relating to any question of relevant
fact to be submitted to the jury has been a part
of Oklahoma law since statehood. Godfrey v.
Wright, 1899 OK 19, ¶0, 56 P. 1051, Syllabus by
the Court, No. 2. In deciding that the right to
present oral argument on a disputed question
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1977
of fact to the jury is an absolute right over
which the trial court has no discretion, Ely
Walker Dry Goods Co. v. Blake, 1916 OK 642, ¶3,
158 P. 381, quoted the 1883 case of Douglass v.
Hill, 29 Kan. 527, 528-529, 29 Kan. 376, 377-378
(1887 edition):
A party to a law suit has a right to be
heard, not merely in the testimony of his
witnesses, but also in the arguments of his
counsel. It matters not how weak and
inconclusive his testimony may be, if it is
enough to present a disputed question of
fact upon which he is entitled to a verdict
of the jury, he has a right to present in the
arguments of his counsel his view of the
case. This is no matter of discretion on the
part of the court, but an absolute right of
the party. Courts doubtless may prevent
their time from being unnecessarily occupied by prolix arguments, and so may limit
the time which counsel shall occupy. And
if the restriction is a reasonable one in view
of the questions involved, and the testimony presented, there will be no error. State v.
Riddle, 20 Kan. 716. But limiting the time
of an argument and refusing to permit any
argument at all, are entirely different matters. The one is the exercise of a discretion,
the other is a denial of a right.
¶27 The right to present argument is codified
in our civil procedure statutes at 12 O.S. 2001,
§577. Section 577 prescribes the order of a jury
trial.5 After the jury has been sworn, the order,
in summary, includes statements of the case
first by the party with the burden of proof and
then the adverse party; presentation of the evidence first by the party with the burden of
proof and then the adverse party; instructions
to the jury; and arguments to the jury first by
the party with the burden of proof and then
the adverse party. The pertinent part of 12 O.S.
2001, §577 provides:
When the jury has been sworn, the trial
shall proceed in the following order,
unless the court for special reasons otherwise directs:
....
Seventh. After the instructions have been
given to the jury the cause may be argued.
(Emphasis added.)
¶28 Section 577 makes the prescribed order
of trial mandatory on the trial judge.6 The
1978
statute gives the parties the right to make closing arguments to the jury, but does not require
them to do so. On its face, the statute places the
discretion to make closing argument with the
parties and not the trial judge.7 Although it
authorizes the trial judge to change the order
in which a jury trial proceeds upon special reason, nothing in §577 indicates that the trial
judge may deny a party the time-honored right
to present relevant evidence and argument of
counsel relating to any question of fact to be
determined by the jury.8
¶29 In this case, the parties made arguments
to the jury at the close of the first stage of the
trial. After the jury found that Tidewater
caused actual damages to the Lierlys in the
amount of $11,000.00 on their malicious prosecution claim and that the evidence that Tidewater acted with reckless disregard for the
rights of others was clear and convincing, the
trial judge proceeded to the second stage of the
trial. The trial judge instructed the jury on the
factors to be considered in determining an
amount of punitive damages, but denied Tidewater’s counsel’s request to make closing
argument on the amount of punitive damages.9
¶30 Punitive damages and the proceedings
for imposition of punitive damages are statutory. 23 O.S.2001, §9.1. Punitive damages may
be imposed in actions for the breach of obligations not arising out of contract. Generally,
punitive damages are considered to be an element of the recovery in the underlying tort
action rested upon the proof of the underlying
claim. Rodebush v. Okla. Nursing Homes, Inc.,
1993 OK 160, ¶21, 867 P.2d 1241, 1247. However, the punitive damages statute requires that
the jury trial on the underlying claim and the
jury trial on the amount of punitive damages
must be separate proceedings. The provisions
of 23 O.S.2001, §9.110 applicable to the trial in
this case read:
A. In an action for the breach of an obligation not arising from contract, the jury, in
addition to actual damages, may, subject to
the provisions and limitations in subsections B, C and D of this section, give damages for the sake of example and by way of
punishing defendant based on the following factors: the seriousness of the hazard to
the public arising from the defendant’s
misconduct; the profitability of the misconduct to the defendant; the duration of the
misconduct and any concealment of it; the
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Vol. 77 — No. 19 — 7/15/2006
degree of the defendant’s awareness of the
hazard and of its excessiveness; the attitude and conduct of the defendant upon
the discovery of the misconduct or hazard;
in the case of a defendant which is a corporation or other entity, the number and
level of employees involved in causing or
concealing the misconduct; and the financial condition of the defendant.
B. Category I. Where the jury finds by
clear and convincing evidence that the
defendant has been guilty of reckless disregard for the rights of others, or an insurer has recklessly disregarded its duty to
deal fairly and act in good faith with its
insured, the jury, in a separate proceeding
conducted after the jury has made such
finding and awarded actual damages,
may award exemplary damages in an
amount not to exceed the greater of:
1. One Hundred Thousand Dollars
($100,000.00); or
2. The amount of the actual damages
awarded.
(Emphasis added.)
¶31 The emphasized statutory language
clearly provides that the jury trial will be separated into two stages. In the first stage, the jury
is to determine fact questions relevant to
defendant’s liability on plaintiff’s claim, actual
damages, and evidence of the defendant’s
reckless disregard for the rights of others. In
the second stage, the jury deals with the fact
question of what amount of punitive damages,
if any, is warranted by the evidence. Sides v.
Cordes, 1999 OK 36, ¶11, 981 P.2d 301, 305.
¶32 Our uniform jury instructions consider
these two separate stages to be two separate
evidentiary trials before the jury. It is the second stage when the parties may present evidence to the jury relating to the amount of
punitive damages;11 which means it is not until
the second stage that the parties have a meaningful opportunity to argue the fact question
as to what amount of damages will punish the
reckless and malicious behavior and deter
such behavior in the future. Accordingly, a
party’s right to present argument of counsel on
any question of fact to be determined by the
jury must be afforded in the second stage of a
jury trial on the amount of punitive damages
under 23 O.S.2001, §9.1(B) and 12 O.S.2001,
§577.
Vol. 77 — No. 19 — 7/15/2006
¶33 In this case, plaintiffs waived closing
argument on the amount of punitive damages
and then defendant asked to make closing
argument. Plaintiffs objected and the trial
judge ruled that the objection “must be sustained.” In sustaining the objection, the trial
court, effectively, allowed plaintiffs’ counsel to
decide the important issue of whether the
defendant would be allowed to exercise its
right to make closing argument to the jury.
Defendant Tidewater preserved its exception
to this ruling.
¶34 Upon our de novo review, it is clear that
the trial court erred, as a matter of law, in
denying Tidewater’s request to present argument on the fact question of the amount of
punitive damages. That legal error resulted in
a substantial violation of Tidewater’s statutory
right to present argument on the fact question
as to the amount of punitive damages. Without
the benefit of closing argument, the jury deliberated for only nine minutes and returned a
verdict in favor of plaintiffs of $11,000 in punitive damages, an amount equal to the actual
damages. The judgment entered on the jury
verdict on punitive damages must be set aside.
¶35 Although we have determined that the
judgment on the jury verdict in the first stage
of the proceeding below is free of error, there
must be a new trial on the amount of punitive
damages. Oklahoma allows a new trial to be
granted solely on the issue of damages, Shinn
v. Francis, 1965 OK 95, ¶31, 404 P.2d 1017, 1023,
where it is clear the error in assessing damages
did not affect the entire verdict. Fields v. Volkswagen of America, Inc., 1976 OK 106, ¶11, 555
P.2d 48, 53. A new trial may be limited to the
fact issues affected by the error where other
fact issues are not interwoven and where it is
clear that the error does not reach over and
affect those issues in which there is no error
and the judgment in other respects is free of
error. Hallford v. Schmacher, 1958 OK 53, ¶20,
323 P.2d 989, 992-993. Here, the legal error
occurred in the second stage of the proceeding
and the only fact issue affected by the error is
the amount of punitive damages. Accordingly,
we reverse the district court’s judgment
entered on the jury verdict fixing punitive
damages in the amount of $11,000.00 and
remand this cause for a new second stage trial
on the sole issue of the amount of punitive
damages.
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1979
V. Conclusion
¶36 We conclude that an oil and gas lessee
who seeks an injunction against the surface
owner for interfering with the lessee’s entry
upon the land at a specific location may be
liable for damages for malicious prosecution.
We also conclude that a party’s right to present
argument on any question of fact to be determined by the jury must be afforded to the
defendant in the second stage of a jury trial on
the amount of punitive damages under 23
O.S.2001, §9.1(B) and 12 O.S.2001, §577 even
when the plaintiff waives argument.
OPINION OF THE COURT OF CIVIL
APPEALS VACATED; ORDER OF THE
DISTRICT COURT DENYING NEW TRIAL
REVERSED; DISTRICT COURT
JUDGMENT ON JURY VERDICT
AFFIRMED IN PART AND REVERSED IN
PART; CAUSE REMANDED TO THE
DISTRICT COURT FOR FURTHER
PROCEEDINGS CONSISTENT WITH THIS
OPINION.
WATT, C. J., WINCHESTER, V.C.J., and
LAVENDER,
HARGRAVE,
OPALA,
KAUGER, EDMONDSON and TAYLOR, JJ.,
concur.
COLBERT, J., concurs in part and dissents in
part.
1. Tidewater’s petition for injunctive relief, filed July 18, 1997, in
Creek County, No. CJ-97-488, alleged “There is only one reasonable
point of ingress and egress to and from the subject property on the east
side of Polecat Creek. The State of Oklahoma has installed a gate at
this point and Defendants have refused to allow Plaintiff to place its
lock on the gate so that Plaintiff may enter and exit the property.
Defendants have informed Plaintiff that it will not be granted access to
the subject property for the purpose of operating its lease unless Plaintiff agrees to pay one-half of the costs of a road which Defendants are
building.”
2. In the Journal Entry of Judgment, filed October 27, 1997, in CJ97-488, the district court found “plaintiffs have access through Mr.
Robbins property to their oil production and are not locked out.” The
court further found “plaintiff should not be at liberty to enter defendants’ property at will from the south entrance, nor use the road built
by defendants, entering from the south.” The court enjoined plaintiff
“from using the roadway built by defendants for ingress and egress to
its oil properties.”
3. The Court of Civil Appeals determined that: 1) the trial court
correctly overruled Tidewater’s demurrer to the evidence and motion
for directed verdict because Tidewater did have access to the subject
oil lease and lacked probable cause to seek an injunction against the
Lierlys; 2) Tidewater waived the advise-of-counsel defense to the malicious prosecution claim in the trial court; 3) the trial court did not
abuse its discretion in refusing to allow Tidewater to call Judge Maley,
who presided over Tidewater’s injunction suit, as a witness to give testimony regarding the injunction suit; 4) the trial court did not abuse its
discretion in refusing Tidewater’s request to make closing argument to
the jury regarding the amount of punitive damages in the second stage
of the trial where plaintiffs (Lierlys) had waived closing argument;
and 5) the jury’s award of actual and punitive damages is supported
by competent evidence.
4. We do not consider all the issues addressed by the Court of Civil
Appeals. Issues addressed by the Court of Civil Appeals and not pre-
1980
sented in the petition for certiorari review will not be considered by
this Court. Okla.Sup.Ct.R. 1.180(b), 12 O.S.2001, ch. 15, app.
5. Oklahoma adopted Kansas’ civil procedure code. Littlefield v.
Brown, 1918 OK 233, ¶3,172 P. 643, 644. The 1889 General Statutes of
Kansas set out the order of trial in ¶4370 (ch.80, §275). In language
identical to the Kansas provision, the order of trial was prescribed in
the 1893 Statutes of Oklahoma Territory, ¶4165 (ch.66, §287), the 1908
General Statutes of Oklahoma, §5123, and the 1909 Compiled Laws of
Oklahoma, §5794. Because Oklahoma’s order of trial was taken from
Kansas, this Court, in Ely Walker Dry Goods Co. v. Blake, supra., followed
the Kansas court’s ruling in Douglass v. Hill, supra. That early statutory order of trial has been included in Oklahoma’s civil procedure
statutes since statehood, and it is now codified at 12 O.S.2001, §577.
6. Unless contrary to clear legislative intent, the word “shall” in a
statute signifies a mandatory command rather than a permissive
directive. Keating v. Edmondson, 2001 OK 110, ¶13, 37 P.3d 882, 888.
7. Words in a statute will be given their plain meaning if possible.
Duncan v. Okla. Dept. of Corrections, 2004 OK 58, ¶5, 95 P.3d 1076, 1079.
8. Oklahoma’s common law protects the statutory right of oral
argument. The common law remains in force in aid of the statutes. 12
O.S. 2001, §2. The statutes and the common law are to be read together as one harmonious whole. Brown v. Ford, 1995 OK 101, ¶10, 905 P.2d
223, 228-229. The right to have counsel present closing argument on a
disputed question of fact is a time-honored right recognized in the
common law of American state courts. See, Dobbins v. Oswalt, 20 Ark.
619 (1859); Douglass v. Hill, 29 Kan. 527 (1893); and Ely Walker Dry
Goods Co. v. Blake, 1916 OK 642, 158 P. 381.
9. The record shows the trial judge read to the jury the Oklahoma
Uniform Jury Instruction No. 5.9 – Exemplary or Punitive Damages –
Second Stage.
10. In 2002, the Legislature amended 23 O.S.2001, §9.1. It added a
new sentence to subsection B, which reads: “Any award of punitive
damages under this subsection awarded in any manner other than as
required in this subsection shall be void and reversible error.” 2002
Okla. Sess. Laws, ch. 462, §1.
11. See, Okla. Uniform Jury Instruction No. 5.6 – Exemplary or
Punitive Damages – First Stage, Notes on Use, which provides: “All
evidence relating to liability for punitive damages should admitted in
the first stage, and evidence which relates solely to the amount of
punitive damages should not be admitted until the second stage.”
2006 OK 48
BART FRANKLIN DAVIS, Petitioner, v.
SOUTHWESTERN BELL TELEPHONE,
SOUTHWESTERN BELL TELEPHONE
(OWN RISK) and THE WORKERS’
COMPENSATION COURT, Respondents.
No. 101,267. June 27, 2006
ON CERTIORARI TO THE COURT OF
CIVIL APPEALS
DIVISION I
¶0 Judge Richard L. Blanchard denied petitioner/claimant’s workers compensation claim,
finding that claimant failed to rebut the 85 O.S.
2001§ 24.2 presumption that the injury is not
work related because it was not reported to
employer, nor was treatment sought within thirty (30) days thereof. Claimant sought review
from the three-judge panel which affirmed the
trial judge’s order as not against the clear weight
of evidence nor contrary to law. Claimant
appealed. The Court of Civil Appeals reversed,
after conducting a de novo review and
concluding that the trial court’s order was contrary to law. We granted respondents’petition
for certiorari.
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Vol. 77 — No. 19 — 7/15/2006
CERTIORARI PREVIOUSLY GRANTED;
OPINION OF THE COURT OF CIVIL
APPEALS IS VACATED AND THE ORDER
OF THE THREE-JUDGE PANEL IS
SUSTAINED.
J.L. Franks, Tomy W. McDonald, FRASIER,
FRASIER & HICKMAN, LLP, Tulsa, Oklahoma,
for Petitioner.
David J.L. Frette, HASTINGS & ASSOCIATES,
Tulsa, Oklahoma, for Respondents.
HARGRAVE, J.
¶1 Judge Richard L. Blanchard denied
claimant’s workers’compensation claim on the
grounds that he failed to rebut by a preponderance of the evidence the presumption that the
injury was not work related because he did not
report the injury to employer or receive medical
treatment for his alleged work-related injury
within thirty (30) days from the date of the
injury.
¶2 Title 85 O.S. 2001 §24.2 provides that if an
injury occurs on the job, the injured employee
must either give notice to the employer or
receive medical treatment within thirty (30) days
of the date the injury occurred or face the rebuttable presumption that the injury was not work
related. The presumption must be rebutted by a
preponderance of the evidence.1
¶3 The claimant in this case, Bart Franklin
Davis, was employed by respondent Southwestern Bell as a customer service technician. He
claimed injury on the job on January 30, 2003,
when a ladder fell on his shoulder. It is undisputed that he did not receive medical treatment
for, or report the injury to the employer within
thirty (30) days thereof, and that he continued to
work at his job. About two months later, he
sought medical treatment from his personal
physician for pain and other trouble with the
shoulder. When told that he would need surgery
on his shoulder, he notified his employer sometime between March 28, 2003 and April 14, 2003.
He filed his Form 3 in mid-April seeking temporary total disability compensation, and subsequently filed an amended Form 3 seeking permanent partial disability compensation.
¶4 The employer raised affirmative defenses
of pre-existing condition and the §24.2 presumption that the injury was not work related
due the employee’s failure to give notice. A
hearing was held before Judge Richard L. Blanchard at which both claimant and respondent
introduced evidence.
Vol. 77 — No. 19 — 7/15/2006
¶5 At the hearing, the claimant testified that
he believed that his shoulder was merely
bruised and he did not wish to file a workers’compensation claim if that were the case. He testified that he did not believe the injury was serious and that he hoped that it would heal on its
own. When he later began to suffer pain and
restricted use of his shoulder, he sought treatment. Upon learning that the injury was more
serious than he had originally thought, he filed
a Form 3. Claimant offered doctors reports from
Dr. H dated May 30, 2003 and September 22,
2003 and reports from orthopaedic Dr. H, as well
as MRI referral form and office notes of physician’s assistant K.D. dated March 29, 2003.
Claimant’s expert, Dr. H was of the opinion that
claimant’s injuries were work related.
¶6 The employer offered medical report of Dr.
L dated November 13, 2003 and patient
encounter forms and office notes from the M.R.I.
evaluation. Employer points out that employee’s versions of how the injury occurred differed. To the physician’s assistant at the MRI
intake on March 28, 2003, he presented that he
had been lifting a ladder. Claimant’s expert, Dr.
H, reported that claimant presented that his
injury happened when a large ladder fell and hit
him on the right shoulder. Claimant also variously described the injury to medical providers
as his shoulder having “popped out” or that his
shoulder was separated.2 Respondent contrasts
this with claimant’s testimony to the court that
he thought it was only a bruise at the time.
¶7 Respondent’s expert, Dr. L reported that
employee had suffered a separated shoulder
some ten years before while participating in
high school wrestling. Dr. L’s opinion was that
he was unable to state within a reasonable
degree of medical certainty that this was a workrelated injury due to substantial pre-existing
problems with the right shoulder. He opined
that the claimant’s current condition may well
represent simply a progression of the injuries
while wrestling in high school.3
¶8 At the conclusion of the hearing, the trial
judge ruled that the claimant failed to rebut the
§24.2 presumption and denied the claim.
Claimant sought review from the three- judge
panel. The three-judge panel affirmed the trial
judge’s order, finding that it was not against the
clear weight of evidence nor contrary to law. The
claimant appealed.
¶9 Claimant argued on appeal that he had
successfully rebutted the presumption and that
he showed good cause for failure to timely
report the injury and that, accordingly, there was
The Oklahoma Bar Journal
1981
no evidence against awarding compensation to
him because respondent did not show that the
injury could have been caused by something
else.
¶10 Employer argued on appeal that there
was competent evidence to support the trial
judge’s ruling, because of the evidence that the
claimant gave different versions of what had
happened, different versions of the shoulder
injury and because of the previous shoulder
problems while wrestling.
¶11 The Court of Civil Appeals reversed,
determining that the question of whether the
presumption has been rebutted was a question
of law and should be reviewed de novo. The
Court of Civil Appeals, relying on Hawkins v.
Okla. Co. Court Clerk’s Office, 2001 OK CIV APP
83, 26 P.3d 124, determined that the trial judge, in
deciding whether the presumption has been
rebutted, should consider only the evidence presented by the claimant. The Court of Civil
Appeals concluded that claimant’s evidence and
all reasonable inferences therefrom, when
viewed in his favor and without consideration
of any evidence favorable to the employer, was
sufficient to overcome the presumption. The
Court of Civil Appeals vacated the trial court’s
ruling that the presumption had not been
rebutted, and remanded for the trial court to
consider all of the evidence and determine
whether claimant sustained his burden of persuading the trial court by a preponderance of
the evidence that his injury arose out of and in
the course of his employment.
¶12 Applying the reasoning of Hawkins, supra,
the Court of Civil Appeals determined that once
the preliminary determination has been made
by the trial judge, considering only the evidence
of the claimant, that the presumption has been
successfully rebutted, the claimant then has the
ultimate burden of persuading the trial court by
a preponderance of the evidence that his injury
arose out of and in the course of his employment, resolution of which requires the trial court
to consider all of the evidence.
¶13 Because the Court of Civil Appeals
applied an incorrect standard of review, we
granted claimant’s petition for certiorari. This
Court has not yet had occasion to consider the
current version of § 24.2(A), after amendment in
1997.4
¶14 Claimant argued that he had shown good
cause for his failure to notify the employer. The
good cause excuse, however, is no longer part of
§ 24.2.5 Legislative amendment in 1997, resulting
in the current version of §24.2, removed the
1982
good cause excuse and also the trial court’s discretion to find good cause shown.6 Prior to
amendment, a failure to give oral or written
notice to the employer within sixty (60) days
from the injury would result in the claim being
forever barred unless the employee received
medical attention from a licensed physician during the 60-day period or in the discretion of the
trial judge, good cause was shown by the employee to
the Court to excuse such failure of notice or treatment. Now, the legislature has removed the good
cause element and created a rebuttable presumption that the claim is not work related. The
intent clearly was to remove the “good cause
shown” excuse for failure to give the required
notice, and to remove the trial court’s discretion
to excuse the failure of notice for good cause
shown.
¶15 Rebutting the presumption in §24.2(A),
however, does not place any additional burden
on the claimant seeking to prove a workers’compensation claim. Any claimant seeking to
recover under the Workers’Compensation Act is
required to prove, by a preponderance of the
evidence, that the injury is work related.7 The
statutory presumption changes nothing. Presumptions shift the burden of proof. The existence of a presumption imposes on the party
against whom it is invoked the duty to offer evidence to the contrary. See, Stumpf v. Montgomery,
1924 OK 360, 226 P. 65, 69. If the opponent does
offer evidence to the contrary, the presumption
disappears and the case stands upon the facts
and the reasonable inferences to be drawn
therefrom. Id. Section 24.2(A), however, places
the burden of proof on the person who has that
burden already.
¶16 Thus, Section 24.2 only requires a claimant
to do what he or she is already required by law
to do. Once the claimant has established by a
preponderance of the evidence that the injury
arose out of employment, the burden shifts to
the employer to refute work-related causation.
Pauls Valley Travel Center v. Boucher, 2005 OK 30,
112 P.3d 1175. Whether disability results from an
accidental injury, or from a pre-existing disease
or prior injury is a fact question for determination by the workers’compensation court. Berg v.
Parker Drilling Co., 2004 OK 72 ¶13, 98 P.3d 1099.
Settled law requires the workers’compensation
court to determine the value of conflicting evidence and resolve the fact issues and enter an
order that is sufficiently definite to enable the
appellate courts to review it intelligently. Clayton
v. Fleming Companies, Inc., 2000 OK 20 ¶13, 1 P.3d
981, 984. It is the duty of the workers’compensation court to grant a full and complete hearing to
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Vol. 77 — No. 19 — 7/15/2006
the parties before making or denying an award.
Id. at ¶22, p. 986.
OF THE THREE-JUDGE PANEL IS
SUSTAINED.
¶17 Title 85 O.S. § 26 provides that the workers’compensation court has full power and
authority to determine all questions in relation
to payment of claims for compensation under
the provisions of the Workers’Compensation
Act. Upon a hearing pursuant to this section,
either party may present evidence and be represented by counsel. The decision of the court
shall be final as to all questions of fact, and,
except as provided in Section 3.6, as to all questions of law.8 The trial judge’s finding that the
claimant failed to rebut the presumption is a
finding that the claimant has failed to prove, by
a preponderance of the evidence, that his claim
is work related. The standard of review on
appeal remains unchanged.
¶20 CONCUR: WATT, C.J., WINCHESTER,
V.C.J., LAVENDER, HARGRAVE, OPALA,
KAUGER, EDMONDSON, JJ.
¶18 The appellate court is simply to canvas the
facts, not with the object of weighing conflicting
evidence, but for the purpose of ascertaining
whether the trial court’s decision is supported
by any competent evidence. Parks v. Norman
Municipal Hospital, 1984 OK 53, 684 P.2d 548, 552.
By statute, all findings of fact made in the workers’compensation court are conclusive and binding unless they are not supported by any competent evidence. Only in the absence of any
competent evidence may the decision be viewed
as erroneous as a matter of law and hence subject to vacation. Id. Title 85 O.S. § 1.1(C) provides
that the provisions of the Workers’Compensation Act shall be strictly construed by the workers’compensation court and appellate courts.
¶19 Both sides presented evidence to the trial
judge who determined that the claimant had
failed in his burden to refute the presumption by
a preponderance of evidence; that is, the trial
judge determined that the claimant failed to
prove by a preponderance of the evidence that
his injury was work related. The three-judge
panel affirmed, ruling that the decision was not
against the clear weight of the evidence. On
appeal, if the order of the three-judge panel is
supported by any competent evidence, it must
be sustained. Parks v. Norman Municipal Hospital,
1984 OK 53, 684 P.2d 548. We hold that the trial
court’s order finding claimant failed to rebut the
§24.2 presumption, and thus failed to show his
claim was work related, is supported by competent evidence. The order of the three-judge
panel, concurring in the trial judge’s denial of
benefits, is accordingly sustained.
CERTIORARI PREVIOUSLY GRANTED;
OPINION OF THE COURT OF CIVIL
APPEALS IS VACATED AND THE ORDER
Vol. 77 — No. 19 — 7/15/2006
¶21 DISSENT: COLBERT, J.
¶22 NOT PARTICIPATING: TAYLOR, J.
1. See text of statute at footnote 6.
2. Intake report of Physician’s Assistant, K.D. on 3/29/03 states
that “patient has had right shoulder pain pretty severe for the past two
weeks. Believes that he probably separated it. He did this from lifting
a ladder.” Report of orthopaedic Dr. H on 4/14/03 reports that
claimant was working with a thirty foot extensions ladder and it
slipped on January 30, 2003. He reports that at that time, his shoulder
popped out . . .” (emphasis added)
3. The 4/14/03 report of claimant’s Dr. H, the orthopaedic specialist, also gives a “history of some injuries of shoulder in high school
while wrestling and possible recurrent dislocations, particularly the
right.”
4. Laws 1997 ch. 361 § 10, eff. Nov. 1, 1997.
5. 85 O.S. Supp. 1986 §24.2(A) provided, in pertinent part:
Unless an employee gives oral or written notice to the employer
within sixty (60) days of the date an injury occurs or the employee receives medical attention from a licensed physician during
the sixty-day period from the date an injury occurrence, the
claim shall be forever barred, unless, in the discretion of the trial
judge, good cause is shown by the employee to the Court to
excuse such failure of notice or treatment. . . . (emphasis added)
6. 85 O.S. 2001 §24.2. Notice of Injury to employer.
A. Unless an employee or former employee gives oral or written
notice to the employer or former employer within thirty (30)
days of the date an injury occurs or the employee receives medical attention from a licensed physician during the thirty-day
period from the date an injury occurred, the rebuttable presumption shall be that the injury was not work related. Such presumption must be overcome by a preponderance of the evidence. . . .”
7. Title 85 O.S. Supp. 2005 § 1.1(B) provides that the burden of
proof, by a preponderance of the evidence, shall be on the party
requesting benefits or relief pursuant to the provisions of the Workers’Compensation Act unless otherwise specifically provided for by law.
8. 85 O.S. 2001 §3.6 sets out the appellate procedure. If appealed to
the three-judge panel, the panel may reverse or modify the decision
only if it determines that such decision was against the clear weight of
the evidence or contrary to law.
2006 OK 49
STATE OF OKLAHOMA ex rel.
OKLAHOMA BAR ASSOCIATION,
Complainant, v. BARRY KNIGHT BEASLEY,
Respondent.
SCBD No. 5085. June 27, 2006
RULE 6 BAR DISCIPLINARY
PROCEEDING
¶0 The Oklahoma Bar Association filed a
complaint and amended complaint against
Barry Knight Beasley alleging multiple
violations of the Oklahoma Rules of Professional Conduct, 5 O.S.2001, ch. 1, app. 3A, and the Rules Governing Disciplinary
Proceedings, 5 O.S.2001, ch. 1, app. 1-A. A
panel of the Professional Responsibility
Tribunal determined that respondent violated the Oklahoma Rules of Professional
The Oklahoma Bar Journal
1983
Conduct and the Rules Governing Disciplinary
Proceedings,
recommended
respondent be suspended from the practice of law for two years and one day and
be assessed costs of the investigative and
disciplinary proceedings and specified
preconditions to reinstatement. Upon our
de novo review, we find respondent’s professional misconduct is established by
clear and convincing evidence, and we
conclude the recommended discipline is
appropriate.
RESPONDENT’S LICENSE SUSPENDED
FOR TWO YEARS AND ONE DAY FROM
THE DATE THIS OPINION BECOMES
FINAL;
RESPONDENT ORDERED TO PAY COSTS
WITHIN NINETY DAYS FROM THE DATE
THIS OPINION BECOMES FINAL.
Loraine Dillinder Farabow, Assistant General
Counsel, Oklahoma Bar Association, Oklahoma
City, Oklahoma, for complainant.
Everett R. Bennett, Jr., Fraiser, Fraiser & Hickman, LLP, Tulsa, Oklahoma, for respondent.
TAYLOR, J.
¶1 The complainant, Oklahoma Bar Association (Bar Association), filed a complaint on July
12, 2005, and an amended complaint on September 26, 2005, against respondent, Barry Knight
Beasley (Beasley), alleging multiple violations of
the Oklahoma Rules of Professional Conduct
(ORPC), 5 O.S.2001, ch. 1, app. 3-A, and the
Rules Governing Disciplinary Proceedings
(RGDP), 5 O.S.2001, ch. 1, app. 1-A. Upon an evidentiary hearing, a trial panel of the Professional Responsibility Tribunal of the Oklahoma Bar
Association (PRT) found that Beasley violated
the ORPC and the RGDP and recommended
that Beasley’s license to practice law be suspended for two years and one day, that he be
ordered to pay costs and that preconditions for
reinstatement be imposed. Upon our de novo
review, we conclude the appropriate discipline
is suspension of Beasley’s license to practice law
for a period of two years and one day. We
impose preconditions to reinstatement and
order the payment of costs.
I. Background
¶2 Barry Knight Beasley, OBA #11220, has
practiced law in the Tulsa area since he graduated from the University of Tulsa Law School, was
licensed by this Court and admitted to membership in the Bar Association in 1985. In November, 2004, the Bar Association received the first of
1984
the six grievances involved in this proceeding.
The grievances, in general, are that Beasley did
not perform the legal services for which he was
paid, failed to communicate with his clients and
failed to refund unearned fees. The time period
involved in the grievances spanned from
December 14, 2002 to May 11, 2005. Upon receipt
of each of the grievances, the Bar Association
opened a formal investigation and mailed notice
to Beasley. Time after time, Beasley failed to
respond to the grievances or to otherwise cooperate with the Bar Association’s investigations.1
¶3 On July 12, 2005, the Bar Association filed a
Rule 6 complaint alleging five counts of professional misconduct in violation of the ORPC and
the RGDP. The Bar Association mailed the complaint to Beasley by certified mail, return receipt
requested. It was unclaimed and returned to the
Bar Association. On September 26, 2005, the Bar
Association filed a one-count amended complaint. It was mailed to Beasley by certified mail,
return receipt requested, and Paula Beasley
accepted delivery. Beasley did not file an
answer.
¶4 In December, 2005, Everett R. Bennett, Jr.,
advised the Bar Association that he was authorized to accept service of process on Beasley’s
behalf. On December 19, 2005, copies of the complaint, amended complaint and other filings in
this Rule 6 proceeding were served on Bennett.2
After this service of process, Beasley did not file
an answer to the complaint or amended complaint.
¶5 On January 12, 2006, the Bar Association
filed a motion to deem allegations admitted pursuant to RGDP, Rule 6.4 and a motion to set a
hearing. The PRT set a hearing for February 6,
2006.
¶6 Beasley and his attorney, Everett R. Bennett, Jr., appeared at the scheduled hearing
before the PRT. Mr. Bennett expressly did not
oppose the motion to deem allegations admitted
and stipulated that the allegations were admitted. Beasley also expressly confessed the
motion. The Bar Association’s exhibits were
admitted into the record without objection.
Beasley submitted to questioning, and the attorneys for the complainant and the respondent
made statements on the record.
¶7 The Bar Association recommended to the
PRT that Beasley’s license to practice law should
be suspended for two years and one day. The
PRT recommended that Beasley be suspended
from the practice of law for two years and a day
and ordered to pay costs of the investigative and
disciplinary proceedings and that he be required
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Vol. 77 — No. 19 — 7/15/2006
to contract with Lawyers Helping Lawyers and
reimburse the unearned fees to his clients as preconditions to his reinstatement. The PRT report
was filed with this Court on March 9, 2006. The
parties filed a joint brief and waiver of further
briefs in this Court on April 28, 2006.
II. Standard of Review of the Proceedings
before the PRT
¶8 This Court has original and exclusive jurisdiction over bar disciplinary matters. RGDP,
Rule 1.1. This Court’s review of the proceedings
before the PRT is de novo. State ex rel. Okla. Bar
Association v. Donnelly, 1992 OK 164, ¶11, 848
P.2d 543, 545. This Court is not bound by the
parties’admissions or stipulations nor the PRT’s
findings of facts and misconduct or recommendations of discipline. Id. In our de novo review,
we examine the record and assess the weight
and credibility of the evidence to determine if
Beasley’s professional misconduct is established
by clear and convincing evidence and, if so, to
determine the appropriate discipline. Id.
III. The Sufficiency of the Record
¶9 Beasley effectively stipulated to the facts
set out in the six grievances underlying the
charges of professional misconduct and the fact
of his total failure to cooperate with the Bar
Association. He testified that he had read the
complaint, amended complaint and motion to
deem allegations admitted and that he confessed the allegations of fact and misconduct.
Beasley’s stipulation was knowing and voluntary and consistent with other evidence in the
record. Accordingly, we accept Beasley’s stipulation as an evidentiary substitute for proof of the
confessed facts. State ex rel. Okla. Bar Association
v. Schraeder, 2002 OK 51, ¶8, 51 P.3d 570, 574-575.
We find the admitted facts together with the
documentary evidence, Beasley’s sworn testimony and statements of counsel are sufficient
for this Court’s de novo review. State ex rel. Okla.
Bar Association v. Groshon, 2003 OK 112, ¶7, 82
P.3d 99, 103.
IV. The Admitted Facts
¶10 In five of the counts, the Bar Association
alleged ethical violations based on the facts contained in the clients’grievances and on Beasley’s
failure to respond to and cooperate with the Bar
Association. In one count, the Bar Association
alleged only Beasley’s failure to respond.
Beasley admitted the facts set out in the
grievances and alleged in the complaint and
amended complaint.
Vol. 77 — No. 19 — 7/15/2006
A. Count I: The Bartosh Grievance
¶11 In December, 2002, Noel Scott Bartosh
paid Beasley $500.00 to assist with a mortgage
application at the Creek Nation Housing
Authority. Except for some attempts to contact
the Cherokee Nation Housing Authority and
finally the Creek Nation Housing Authority,
Beasley did not perform any services for Bartosh. Beasley repeatedly failed to return phone
calls or otherwise communicate with Bartosh. In
June, 2004, Bartosh wrote Beasley demanding
refund of the $500.00 fee. In September, 2004,
Bartosh filed a grievance with the Tulsa County
Bar Association.
¶12 In November, 2004, the Tulsa County Bar
Association forwarded the Bartosh grievance to
the Bar Association. In December, the Bar Association opened a formal investigation of the Bartosh grievance and mailed notice to Beasley on
December 27, 2004. Beasley did not respond and
the Bar Association mailed a second notice to
Beasley on January 19, 2005. Again, Beasley did
not respond and the Bar Association issued a
subpoena, as authorized by RGDP, Rule 2.8(b),
and then an alias subpoena to depose Beasley on
March 10, 2005. Beasley did not appear for the
deposition.
B. Count II: The Rokni Grievance
¶13 In June, 2004, Ali Rokni-Abjari (Rokni)
hired Beasley to change his last name from
Rokni-Abjari to Rokni. Rokni paid Beasley a
$750.00 fee. Beasley repeatedly failed to return
phone calls or otherwise communicate with
Rokni. Beasley led Rokni to believe he had a
court date for the name change but he did not.
Rokni demanded a refund of the fee. Beasley did
not perform any legal services for Rokni. In
November, 2004, Rokni filed a grievance with
the Tulsa County Bar Association.
¶14 In February, 2005, the Tulsa County Bar
Association forwarded the Rokni grievance to
the Bar Association. The Bar Association opened
a formal investigation and mailed notice to
Beasley on March 9, 2005. Beasley did not
respond, and the Bar Association mailed a second notice to Beasley on March 16, 2005. Again,
Beasley did not respond.
C. Count III: The Cooley Grievance
¶15 In February, 2005, Jana Denise Cooley
hired Beasley to finish her pending divorce and
paid him a $750.00 retainer fee. Beasley assured
Cooley he had time to work on her divorce, and,
at one point, Beasley promised to make a filing
by the following Friday. Beasley did not meet
the promised filing date, and he repeatedly
The Oklahoma Bar Journal
1985
failed to return phone calls or otherwise communicate with Cooley. Cooley fired Beasley and
demanded a refund of the $750.00 fee. Beasley
did not refund the fee, indicating that the IRS
had frozen his account.
¶16 In March, 2005, Cooley filed a grievance
with the Bar Association. The Bar Association
opened a formal investigation and mailed notice
to Beasley on March 31, 2005. Beasley did not
respond, and the Bar Association mailed a second notice to Beasley on April 7, 2005. Again,
Beasley did not respond.
D. Count IV: The York Grievance
¶17 In September, 2004, Patricia Ann York
paid Beasley $160.00 to talk with her son about a
criminal matter. Beasley agreed to meet with
York’s son at a specific time and date, but
Beasley did not keep the appointment. He then
scheduled two other meetings with York to
refund the $160.00 fee. Beasley did not keep
those appointments. Beasley repeatedly failed to
return York’s phone calls. In October, 2004, York
filed a grievance with the Tulsa County Bar
Association.
¶18 In March, 2005, the Tulsa County Bar
Association forwarded the York grievance to the
Bar Association. The Bar Association opened a
formal investigation and mailed notice to
Beasley on March 31, 2005. Beasley did not
respond.
E. Count V: The Shaw Grievance
¶19 In this count, the Bar Association did not
allege that Beasley failed to provide legal services or failed to communicate with the client. The
Bar Association alleged that Lisa Faye Shaw
hired Beasley to represent her son on a felony
drug charge in Washington County and paid
him $5,000.00 in May, 2004, and that Beasley
entered an appearance and appeared at various
proceedings in the felony case through October,
2004. Beasley did not timely appear at the October preliminary hearing. Although Beasley
called to advise he would be late, Shaw told the
judge she would hire new counsel, and the
judge continued the preliminary hearing until
November, 2004.
¶20 In May, 2005, Shaw filed a grievance
against Beasley with the Bar Association. The
Bar Association opened a formal investigation
and mailed notice to Beasley on May 26, 2005.
Beasley did not respond. The alleged professional misconduct in this count is that Beasley
failed to respond to the grievance and to cooperate with the Bar Association.
1986
F. Count VI: The Hursh Grievance
¶21 In May, 2005, Victor Willard Hursh hired
Beasley to represent him in a divorce and child
support matter. Hursh paid Beasley $550.00.
Beasley did not appear at a child support hearing on June 20, 2005. Beasley did not perform the
legal services as agreed. Beasley failed to return
Hursh’s phone calls.
¶22 On July 29, 2005, Hursh filed a grievance
against Beasley with the Bar Association. The
Bar Association opened a formal investigation
and mailed notice to Beasley on August 10, 2005.
Beasley did not respond. On September 26, 2005,
the Bar Association filed a one-count amended
complaint, adding the Hursh grievance to the
Rule 6 proceeding.
V. The Admitted Misconduct
¶23 The Bar Association alleged and Beasley
admitted that as to Bartosh, Rokni, Cooley, York
and Hursh (Counts I, II, III, IV and VI), Beasley
violated the ORPC, Rules 1.1 (requiring competent representation), 1.3 (requiring diligence and
promptness in representation), 1.4 (requiring
reasonable communication with the client), 1.5
(requiring reasonable fees), 1.15 (requiring the
safekeeping of a client’s property), 1.16(a)(1)
(prohibiting the accepting of representation
which will result in violation of the ORPC or
other law), 1.16(a)(2) (prohibiting the accepting
of representation when the lawyer’s physical or
mental condition impairs the lawyer’s ability to
represent the client), 1.16(d) (requiring the
refund of unearned fee) and 8.4(a) (providing
that an attempt to violate ORPC constitutes professional misconduct) and the RGDP, Rule 1.3
(providing that acts bringing discredit to legal
profession constitute grounds for discipline).
Also, the Bar Association alleged and Beasley
confessed that as to Rokni, Cooley and York
(Counts II, III and IV), Beasley violated the
ORPC, Rule 8.4(c) (prohibiting misrepresentation). And, the Bar Association alleged and
Beasley confessed that Beasley’s failure to
respond to all six grievances and to cooperate
with the Bar Association in investigating the
grievances (Counts I through VI) constituted
violations of the ORPC, Rule 8.1 (b) (requiring a
lawyer to respond to a lawful demand for information from the disciplinary authority) and the
RGDP, Rule 5.2 (providing that failure to answer
after service of a grievance constitutes grounds
for discipline).
¶24 Upon our de novo review, we find there is
clear and convincing proof that Beasley violated
the ORPC, Rules 1.13 by his lack of preparation,
1.34 by his lack of diligence and promptness, 1.45
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Vol. 77 — No. 19 — 7/15/2006
by his failure to communicate, 1.16(d)6 by his
failure to refund unearned fees, 8.1(b)7 by his
failure to provide information to the Bar Association and 8.4(c)8 by his misrepresenting a court
date and the RGDP, Rules 1.39 by bringing discredit upon the legal profession and 5.210 by his
failure to respond to the grievances. We conclude that Beasley’s professional misconduct
warrants discipline.
VI. The Testimony at the PRT Hearing
¶25 The first time Beasley cooperated with the
Bar Association in this matter was at the scheduled hearing before the PRT. Beasley appeared
at the hearing, admitted he is addicted to alcohol
and voluntarily and willingly submitted to
questioning by counsel for the Bar Association
and members of the PRT.
¶26 Responding to questions regarding the
underlying grievances, Beasley testified that he
has not refunded any of the fees paid by those
clients but that he honestly intends to refund
those fees and will reimburse the Client Security
Fund for any claims made by his clients for
unearned fees. Beasley accepted responsibility
for his failure to provide the legal services to his
clients, apologized and expressed remorse for
that failure and for bringing discredit to the legal
profession. He testified he has no excuse for his
failure to respond to the grievances and to cooperate with the Bar Association even though he
has had lots of personal problems.
¶27 Responding to questions about his law
practice, Beasley testified that he worked primarily in the civil area with two law firms for some
ten years and then moved into criminal defense
work as a sole practitioner. He testified that he
has started to refer cases out to other lawyers in
anticipation of discipline in this matter. Regarding his personal life, Beasley testified that he has
encountered serious problems in the past few
years including stressful criminal defense work,
a pending divorce after some twenty-five years
of marriage, financial problems with IRS
enforcement and impairment from alcohol
addiction.
¶28 Responding to questions about his alcohol
addiction, Beasley testified that the alcohol
abuse started about 1999. He has participated in
several alcohol treatment programs without success. About eighteen months before the PRT
hearing, Beasley sought help at Saint John’s
Medical facility, but he returned to drinking.
Some six to eight months before the hearing, he
spent a week in a detoxification program but
returned to drinking, and he had a contract with
Lawyers Helping Lawyers but did not follow
Vol. 77 — No. 19 — 7/15/2006
the terms of the contract. He has a pending DUI
charge in the District Court in Tulsa County. He
has a plea agreement for a one-year suspended
sentence, $500.00 fine and fifty-six hours of community service and a $100.00 fine for driving
under suspension. Beasley testified that he has
been sober for one week and is ready to work
toward recovery and that he intends to seek
the help of Lawyers Helping Lawyers and
Alcoholics Anonymous.
¶29 Mr. Bennett did not question his client,
but he did make a statement to the PRT on his
behalf. Bennett advised that he went to law
school with Beasley; he has been friends with
Beasley for twenty-five years; he has been
involved in litigation, from civil to first degree
murder cases, with Beasley; Beasley usually
puts more preparation into his representation
than most other lawyers; he observed changes in
Beasley over the past few years; he has observed
in the last three weeks, however, that Beasley
has started to step up to his responsibilities; in
his opinion, Beasley’s appearance before the
PRT is a big step; and a two-year-and-one-day
suspension will only compound Beasley’s
problems.
¶30 The Bar Association recommended
Beasley be suspended for two years and one
day. In doing so, counsel for the Bar Association
announced that she respects the fact that Beasley
is accepting responsibility, that she believes his
remorse is sincere and that the public will be
protected in the reinstatement process.
VII. Mitigation
¶31 Beasley’s testimony and counsels’statements clearly suggest that Beasley’s professional misconduct stems from his spiraling personal
problems, particularly his alcohol addiction.
Addiction to alcohol is not in itself enough to
mitigate discipline. State ex rel. Okla. Bar Association v. Doris, 1999 OK 94, ¶39, 991 P.2d 1015,
1025. In Doris, this Court refused to heavily consider alcohol abuse as a mitigating factor where
the lawyer failed to recognize or control the
problem after three convictions for driving
under the influence of alcohol and four other
arrests for alcohol-related offenses while in control of a motor vehicle and disbarred the lawyer.
To mitigate discipline the lawyer must recognize
the alcohol problem, seek and cooperate in treatment and be willing to undergo supervision to
assure sobriety. State ex rel. Okla. Bar Association
v. Carpenter, 1993 OK 86, ¶17, 863 P.2d 1123,1130.
In Carpenter, this Court considered alcohol abuse
as a mitigating factor in fashioning discipline,
suspended the lawyer from the practice of law
The Oklahoma Bar Journal
1987
for six months and required the lawyer to
undergo supervision for two and one-half years.
¶32 Beasley testified that he has an alcohol
problem and that he is willing to seek out and
cooperate in treatment and be supervised by
Lawyers Helping Lawyers. We shall be mindful
of this testimony in fashioning the discipline. On
the other hand, Beasley has a history of seeking
treatment then failing to participate in the treatment programs. Additionally, the record reflects
that Beasley has had at least two alcohol-related
traffic offenses, in April of 2000 and in October
of 2005. His driving under the influence of intoxicating liquor is of serious concern. These factors
must also be considered in fashioning the
discipline.
VIII. Enhancement
¶33 In fashioning the degree of discipline to be
imposed for misconduct, this Court considers
“prior misconduct where the facts are charged
in the complaint and proved and the accused
has been afforded an opportunity to rebut such
charges.” RGDP, Rule 1.7. The Bar Association
alleged in the complaint filed herein that Beasley
had received a private reprimand from the Professional Responsibility Commission of the
Oklahoma Bar Association (PRC) in March,
2004. The PRC found the grievance did not warrant discipline. Beasley was reprimanded for not
responding to the grievance. Because Beasley
has flagrantly disregarded numerous attempts
by the Bar Association to communicate with him
in this matter, we cannot disregard his previous
failure to communicate with the Bar Association.
IX. Discipline
¶34 Our responsibility in disciplinary proceedings is not to punish the offending lawyer.
Doris, 1999 OK 94 at ¶37, 991 P.2d 1025. The purposes of discipline are the protection of the public, the preservation of the integrity of the bar
and the deterrence of similar misconduct. State
ex rel. Okla. Bar Association v. Benefield, 2005 OK
75, ¶21, 125 P.3d 1191, 1195. We must independently determine the discipline that will achieve
these goals. Doris, 1999 OK 94 at ¶38, 991 P.2d at
1025. Although we determine the appropriate
discipline on a case by case basis, we must consider the discipline previously imposed for similar misconduct. Id.
¶35 We have imposed a wide range of discipline in matters where the lawyer did not earn
an advance fee due to negligence in performing
the work or the lack of diligence and promptness in the representation and/or the failure to
account for the unearned fee or to refund it.
1988
Often, this discipline has been imposed for violations of ORPC, Rule 1.5 or Rule 1.15 for charging an excessive fee, failing to safekeep the
client’s property and commingling of funds.
Like this matter, our previous cases involving
unearned fees dealt with numerous violations.
Although we find Beasley failed to refund
unearned fees in violation of ORPC, Rule
1.16(d), our previous cases provide guidance.
¶36 In State ex rel. Okla. Bar Association v. Bills,
1997 OK 151, 951 P.2d 1090, respondent, who
failed to properly deposit a retainer fee, received
a public reprimand in light of the efforts to repay
the fee and correct the deficiencies in the office
practice. In State ex rel. Okla. Bar Association v.
Whiteley, 1990 OK 46, 792 P.2d 1174, respondent,
who failed to properly account for a retainer fee,
received a public censure and was required to
refund the $1,000.00 fee with interest within six
months. In State ex rel. Okla. Bar Association v.
Watson, 1994 OK 32, 897 P.2d 246, respondent,
who charged an excessive fee, received a suspension for one year and was required to refund
more than $16,000.00 of the fee as a condition of
reinstatement. In State ex rel. Okla. Bar Association
v. Wright, 1997 OK 119, 957 P.2d 1174, respondent, who was negligent in performing work
and was not diligent and prompt in performing
the services for which he was paid in advance by
some nine clients, received a suspension for two
years and one day. In State ex rel. Okla. Bar Association v. Phillips, 1990 OK 4, 786 P.2d 1242,
respondent, who failed to file a probate after
receiving an advance fee and made misrepresentations to the client, was suspended for three
years and required to refund the fee as a condition to reinstatement.
¶37 In previous disciplinary matters where
alcohol or substance abuse has been a factor, we
have focused on the need to safeguard the public. We recognized in Donnelly, 1992 OK 164 at
n.21, 848 P.2d at 547-548, n.21, that alcoholism is
an incapacitating disease which may be treated
as a mitigating factor in a Rule 6 proceeding
when the lawyer has recognized the problem
and sought treatment before the disciplinary
proceeding. Donnelly concluded that a public
reprimand was sufficient discipline for deceiving the clients where the misconduct did not
cause economic harm to the clients and the
lawyer no longer used alcohol, minimizing the
threat to the public.
¶38 The discipline imposed to safeguard the
public from professional misconduct that might
result from alcohol abuse runs the gamut from
suspension with supervision to disbarment. In
Carpenter, 1993 OK 86, 863 P.2d 1123, the respon-
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Vol. 77 — No. 19 — 7/15/2006
dent was disciplined for making non-interestbearing loans to his clients, commingling client
funds with his funds and failing to properly
account for and promptly deliver funds to client.
Carpenter took into consideration the respondent’s efforts to assure sobriety and imposed a
six-month suspension followed by a two-andone-half year supervised probation.
¶39 In State ex rel. Okla. Bar Association v.
Adams, 1995 OK 17, 895 P.2d 701, the Bar Association filed Rule 6 and Rule 10 disciplinary proceedings. Adams denied he had a drinking
problem. This Court found that Adams’alcohol
abuse rendered him personally incapable of
practicing law. Considering his previous private
reprimand in this Court, his failure to respond to
five pending grievances and his failure to cooperate with the Bar Association, Adams was suspended from the practice of law for two years
and one day.
¶40 In State ex rel. Okla. Bar Association v.
Briery, 1996 OK 45, 914 P.2d 1046, the respondent
was disciplined on three counts of negligent
misuse and commingling of clients funds. Considering that he had received inpatient treatment for his alcohol abuse and planned to seek
help from Lawyers Helping Lawyers, Briery
was suspended from the practice of law for two
years and one day.
¶41 In Doris, 1999 OK 94, 991 P.2d 1015, the
respondent was disciplined for intentional and
purposeful misappropriation of client funds, for
neglect of client matters and for failure to communicate with a client. Considering the seriousness of the harm to his clients and the facts that
he had appeared in court while intoxicated and
had numerous alcohol-related traffic offenses,
Doris was disbarred.
¶42 Similarly, we have imposed discipline to
safeguard the public from professional misconduct that might result from drug abuse. In State
ex rel. Okla. Bar Association v. Ashton, 2003 OK
101, 81 P.3d 676, the respondent was disciplined
after convictions of a drug-related felony and
two misdemeanors. In Ashton, we suspended his
license for six months and imposed conditioned
supervision for two years, both to commence on
the day the opinion became final.
¶43 In State ex rel. Okla. Bar Association v. Giger,
2001 OK 96, 37 P.3d 856, the respondent was disciplined for mishandling client funds, committing criminal acts that reflect adversely on the
lawyer’s fitness to practice law, bringing discredit to the profession, failing to communicate
with clients and failing to respond to investigative inquiries. Giger had numerous drug-related
Vol. 77 — No. 19 — 7/15/2006
traffic offense, but he had recognized the effect
of his prescription drug addiction, had cooperated with physicians, had undergone substance
abuse assessment and had agreed to participate
in Lawyers Helping Lawyers. Giger was suspended from the practice of law for one year
with concurrent conditioned supervision for
two years. Giger teaches that substance abuse of
any kind is incompatible with the practice of law
and that the discipline can be mitigated when
the lawyer recognizes the adverse affect a debilitating disease or illness has on the discharge of
that lawyer’s professional responsibilities and
the lawyer cooperates in the treatment. Id. at
¶21, 37 P.3d at 864.
¶44 In the joint brief filed herein, the parties
“submit that a suspension of two years and one
day, with an assessment of costs, would properly serve the goals of protecting the public and
our courts and deterring future misconduct by
Respondent and others.” We agree. Suspension
for two years and one day is consistent with discipline imposed upon other lawyers committing
similar misconduct. It would allow Beasley time
to recover from his admitted alcohol addiction
and assure his sobriety. It would require Beasley
to seek reinstatement in a proceeding pursuant
to the RGDP, Rules 11.1 through 11.7, which will
safeguard the public.
X. Preconditions to Reinstatement
¶45 The PRT considered Beasley’s alcohol
addiction to be an aggravating factor and a mitigating factor for disciplinary purposes. Because
alcohol addiction presents this dilemma, it is
appropriate to require Beasley to take necessary
steps to achieve sobriety. At the PRT hearing on
February 6, 2006, Beasley testified that he had
been sober for a week. It is not necessary that
this Court direct participation in any specific
program to assure his continued sobriety. The
specific treatment necessary for Beasley’s rehabilitation and recovery from alcohol addiction is
his responsibility if he desires to demonstrate his
fitness to practice law and to have his license
reinstated. See Briery, 1996 OK 45 at ¶14, 914 P.2d
at 1049.
¶46 Beasley has admitted that he has not
refunded the unearned fees to five of his clients.
He caused economic harm to his clients. As a
precondition to reinstatement, Beasley must
refund those unearned fees.
XI. Costs
¶47 The Bar Association filed an application to
assess the costs of the investigative and disciplinary proceedings in the amount of $1,171.02
The Oklahoma Bar Journal
1989
against Beasley. The application is supported by
documents attached thereto. In his testimony
before the PRT, Beasley acknowledged his
responsibility for these costs. Beasley has not
filed an objection to the application.
¶48 The Bar Association’s application is granted. Beasley is ordered to pay costs in the amount
of $1,171.02 within ninety (90) days after this
opinion becomes final in accordance with the
RGDP, Rule 6.16.
XII. Conclusion
¶49 Upon our de novo review, we conclude
there is clear and convincing proof that Beasley
violated the ORPC and the RGDP. We further
conclude that Beasley’s professional misconduct
warrants discipline and that suspension of his
license to practice law for a period of two years
and one day is appropriate. We also conclude it
is appropriate to set forth preconditions to the
reinstatement of Beasley’s license to practice
law. We determine as preconditions to the reinstatement of his license to practice law, in addition to the requirements in the RGDP, Rules 11.1
through 11.7, Beasley must demonstrate that 1)
he has control over his alcohol disease, 2) he has
refunded the unearned fees described in Counts
I, II, III, IV and VI in this opinion in the total
amount of $2,710.00 by paying the clients or
reimbursing the Client Security Fund if restitution has been made on his behalf, and 3) he has
paid the costs of these proceedings in the
amount of $1,171.02.
RESPONDENT’S LICENSE SUSPENDED
FOR TWO YEARS AND ONE DAY FROM
THE DATE THIS OPINION BECOMES
FINAL; RESPONDENT ORDERED TO PAY
COSTS WITHIN NINETY DAYS FROM
THE DATE THIS OPINION BECOMES
FINAL.
WATT, C.J., WINCHESTER, V.C.J., and
LAVENDER,
HARGRAVE,
OPALA,
EDMONDSON, TAYLOR and COLBERT, JJ.,
concur.
KAUGER, J., concurs in part and dissents in
part: I agree discipline is necessary, but this proceeding should have been brought under Rule
10.
1. During the investigative stage of this matter, Deborah Reheard,
attorney, represented Beasley. The record contains letters from
Reheard dated March 10 and 30, April 7 and 21, and May 18, 2005,
indicating that Beasley is an admitted alcoholic, that he was accepting
help for his alcohol abuse but that he was not providing her with necessary information to respond to the grievances. Reheard praised
Beasley’s legal abilities and his criminal defense skills and expressed
her opinion that he is worth saving. On January 25, 2006, Reheard filed
her notice of non-representation in this proceeding.
1990
2. At the time, Everett R. Bennett, Jr., was representing Beasley on
misdemeanor charges pending in the District Court in Tulsa County
for driving while under the influence of intoxicating liquor and driving under suspension.
3. Rule 1.1 of the ORPC provides:
A lawyer shall provide competent representation to a client.
Competent representation requires the legal knowledge, skill,
thoroughness, and preparation reasonably necessary for the representation.
4. Rule 1.3 of the ORPC provides:
A lawyer shall act with reasonable diligence and promptness
in representing a client.
5. Rule 1.4 of the ORPC provides:
(a) A lawyer shall keep a client reasonably informed about
the status of a matter and promptly comply with reasonable
requests for information.
(b) A lawyer shall explain a matter to the extent reasonably
necessary to permit the client to make informed decisions
regarding the representation.
6. Rule 1.16(d) of the ORPC provides:
Upon termination of representation, a lawyer shall take
steps to the extent reasonably practicable to protect a client’s
interests, such as giving reasonable notice to the client, allowing
time for employment of other counsel, surrendering papers and
property to which the client is entitled and refunding any
advance payment of fee that has not been earned . . . .
7. Rule 8.1(b) of the ORPC provides:
An applicant for admission to the bar, or a lawyer in connection with a bar admission application or in connection with a
disciplinary matter, shall not . . . fail to disclose a fact necessary
to correct a misapprehension known by the person to have arisen in the matter, or knowingly fail to respond to a lawful
demand for information from an admissions or disciplinary
authority, except that this rule does not require disclosure of
information otherwise protected by Rule 1.6.
8. Rule 8.4(c) of the ORPC provides:
It is professional misconduct for a lawyer to:
...
(c) engage in conduct involving dishonesty, fraud, deceit or
misrepresentation . . . .
9. Rule 1.3 of the RGDP provides:
The commission by any lawyer of any act contrary to prescribed standards of conduct, whether in the course of his professional capacity, or otherwise, which act would reasonably be
found to bring discredit upon the legal profession, shall be
grounds for disciplinary action . . . .
10. Rule 5.2 of the RGDP requires that a lawyer make a written
response to a bar grievance or request for information containing “a
full and fair disclosure of all the facts and circumstances pertaining to
the respondent lawyer’s alleged misconduct . . . .”
2006 OK 50
STATE OF OKLAHOMA, ex rel.
OKLAHOMA BAR ASSOCIATION,
Complainant, v. RHETT HENRY WILBURN,
Respondent.
SCBD No. 5012. June 27, 2006
ORIGINAL PROCEEDING FOR ATTORNEY
DISCIPLINE
¶0 Complainant filed a complaint against
Respondent, pursuant to Rule 6, RGDP, alleging
he committed specific acts constituting professional misconduct. It alleged he pled guilty to
two counts of outraging public decency, a misdemeanor, constituting violations of Rule 8.4(b),
Rules of Professional Responsibility, and Rule
1.3, Rules Governing Disciplinary Proceedings.
Complainant and the Professional Responsibility Tribunal recommend discipline of a private
reprimand.
The Oklahoma Bar Journal
Vol. 77 — No. 19 — 7/15/2006
PUBLICLY CENSURED; COSTS IMPOSED
Dan Murdock, General Counsel, Oklahoma Bar
Association, Oklahoma City, Oklahoma, for
Complainant,
Joseph R. Farris, Feldman, Franden, Woodard,
Farris & Boudreaux, Tulsa, Oklahoma, for
Respondent.
OPINION
WATT, Chief Justice:
¶1 The Complainant, Oklahoma Bar Association (the Bar), filed a complaint on February 25,
2005, against Rhett Henry Wilburn, a licensed
attorney in Oklahoma, pursuant to Rule 6, Rules
Governing Disciplinary Proceedings, 5 O.S.
2001, Ch. 1, App. 1-A. The Bar alleged Wilburn
was initially charged with two counts of felony
sexual battery in Tulsa County.1 Both female victims were employed as security guards at the
Tulsa County Courthouse at the time of the incidents. Both counts were amended to charges of
misdemeanor outraging public decency, to
which Wilburn pled guilty on February 24, 2004.
He received a one-year suspended sentence on
each count to run concurrently. He was also
given forty (40) hours of community service.
The complaint alleged his conduct violated the
mandatory provisions of Rule 8.4(b), Oklahoma
Rules of Professional Conduct (ORPC), 5 O.S.
2001, Ch. 1, App. 3-A,2 and Rule 1.3, Rules Governing Disciplinary Proceedings (RGDP), 5 O.S.
2001, Ch. 1, App. 1-A.3
¶2 The “Joint Stipulations of Fact and Agreed
Conclusions of Law” (Stipulations), were
included as an exhibit at the hearing conducted
by the Professional Responsibility Tribunal
(Trial Panel). All parties stipulated to the facts
surrounding the criminal charges set out above
that his conduct constituted professional misconduct and violated ORPC Rule 8.4(b) and
RGDP Rule 1.3. It was also stipulated that
Wilburn is responsible for the costs incurred for
the investigative and disciplinary proceedings
in this matter. An application for costs was filed
by the Bar in the amount of $166.98.
egable responsibility to decide whether misconduct has occurred and what discipline is appropriate. Garrett, 2005 OK 91, ¶3, 127 P.3d 600, 602;
Anderson, 2005 OK 9, ¶15, 109 P.3d 326, 330. We
exercise this responsibility, not for the purpose
of punishing an attorney, but to assess his or her
continued fitness to practice law, and to safeguard the interests of the public, the courts and
the legal profession. Garrett, 2005 OK 91, ¶3, 127
P.3d 600, 602; Taylor, 2003 OK 56, ¶22, 71 P.3d 18,
29; State of Oklahoma, ex rel. Oklahoma Bar
Association v. Wagener, 2005 OK 3, 107 P.3d 567.
¶4 Our review of the record is de novo in which
we conduct a non-deferential, full-scale examination of all relevant facts; the recommendations
of the Trial Panel are not binding on us, but are
merely advisory. See Anderson, 2005 OK 9, ¶15,
109 P.3d 326, 330; State ex rel. Oklahoma Bar
Association v. Patmon, 1998 OK 91, 975 P.2d
860; Taylor, 2003 OK 56, ¶2, 71 P.3d 18, 21. The
record in this case consists of the Stipulations,
the transcript of the February 28, 2006, hearing
conducted by the Trial Panel, the exhibits admitted at the hearing and the “Report of the Professional Responsibility Tribunal,” (Trial Panel
Report). We have a responsibility to ensure the
record is sufficient for a thorough inquiry into
essential facts and for deciding the appropriate
discipline. Garrett, 2005 OK 91, ¶4, 127 P.3d 600,
602; State ex rel. Oklahoma Bar Association v.
Adams, 1995 OK 17, 895 P.2d 701. We find the
record submitted in this proceeding is adequate
for our review.
FACTS
JURISDICTION AND STANDARD OF
REVIEW
¶5 As stated above, the charges of two counts
of felony sexual battery against Wilburn, were
reduced to misdemeanor charges of outraging
public decency to which he pled guilty. He
received one-year suspended sentences on each
count to run concurrently and was ordered to
complete forty (40) hours of community service.
Although he had the opportunity to “buy out”
the hours, he completed them and has fully satisfied all terms and conditions of his probation.
He has undergone counseling to learn appropriate behavior around females in public. He said
he understands that he previously exercised bad
judgment and has since corrected that behavior.
¶3 In disciplinary proceedings this Court acts
as a licensing court in the exercise of our exclusive original jurisdiction. State ex rel. Oklahoma
Bar Association v. Garrett, 2005 OK 91, 127 P.3d
600; State ex rel. Oklahoma Bar Association v.
Anderson, 2005 OK 9, 109 P.3d 326; State ex rel.
Oklahoma Bar Association v. Taylor, 2003 OK
56, 71 P.3d 18. We have a constitutional, nondel-
¶6 Wilburn testified his law practice required
his presence at the courthouse on a regular basis.
He said he saw the female security guards
everyday and knew them quite well. He
described his conduct with them as “horseplay”,
banter and joking, and, he did not, in fact, comprehend the specific incident about which the
deputy sheriff pulled him aside in the court-
Vol. 77 — No. 19 — 7/15/2006
The Oklahoma Bar Journal
1991
house. He admitted, however, that although
there had been bantering back and forth for six
months to a year, there had previously been no
touching in the manner described in the complaint. See footnote 1. He realizes his behavior
was inappropriate with both women and stated
it will not happen again. He stated “there is no
excuse. And I apologize profusely for it.”4
¶7 Wilburn testified that his judgment was not
impaired due to the influence of drugs or alcohol, either before or at the time of either incident,
or at the time he signed the Stipulations. He did
not understand why he had to take the drug and
alcohol assessment except for the fact his attorney advised him to do it, saying “we need to get
this over with.” He received a low rating on his
drug and alcohol assessment, which indicated
no drug addiction or problems with alcohol.
¶8 The Bar, through Mr. Murdock, told the
Trial Panel there was no evidence of any drug or
alcohol abuse either in the course of this investigation, or in the Tulsa County District Attorney’s Office. He also told the Trial Panel that
Wilburn and his attorney have fully cooperated
in all aspects of the investigation. At the hearing
Mr. Murdock recommended a public censure as
appropriate discipline for Wilburn, but at the
time of filing the brief-in-chief on behalf of the
Bar, he changed the recommendation to a
private reprimand.
REPORT OF PROFESSIONAL
RESPONSIBILITY TRIBUNAL
¶9 In addition to the above stated facts regarding the initial charges of sexual battery as to both
women, the reduction of the charges to misdemeanors, the one-year suspended sentences to
run concurrently, and the direction to complete
40 hours of community service, the Trial Panel
found Wilburn had successfully completed all of
the terms and conditions of his judgment and
sentence. It also stated Wilburn had undertaken
“other steps” to assure that the conduct upon
which the Bar’s complaint was made is not
repeated. The Trial Panel further found the Bar
had established by “clear and convincing evidence”5 that Wilburn violated the mandatory
provisions of Rule 8.4(b), ORPC, and Rule 1.3,
RGDP, and that his conduct constituted grounds
for professional discipline. The Trial Panel recommended a private reprimand as appropriate
discipline.
MITIGATION AND DISCIPLINE
¶10 The evidence of Wilburn’s misconduct
supports the Stipulations of the parties and the
Trial Panel that he committed violations of Rules
1992
1.3, RGDP, and 8.4, ORPC. He admitted his
actions and pled guilty to misdemeanor outraging public decency which violates ORPC Rule
8.4. Thus, RGDP 1.3 was also violated, as an act
bringing discredit to the legal profession. The
Bar, the Trial Panel and Wilburn have recommended a private reprimand as the appropriate
discipline in this case. However, we find a public censure is the appropriate discipline.
¶11 This Court has previously considered the
proper discipline for lawyers accused of sexually inappropriate conduct with clients6 and nonclients.7 In addition to our consideration that
appropriate discipline is imposed, not to punish
the attorney, but to protect the interests of the
public, the courts and the legal profession, we
must also consider the deterrent effect upon
both the offending respondent and other attorneys contemplating similar conduct. Taylor,
2003 OK 56, ¶22, 71 P.3d 18, 29.
¶12 We may consider mitigating circumstances when determining appropriate discipline. Taylor, 2003 OK 56, ¶22, 71 P.3d 18, 29.
The basis of our decision to impose a public censure is not to punish Wilburn. We acknowledge
he has had no previous grievances filed against
him and that the Bar has publicly commended
him and his attorney for their cooperation during this investigation. We also acknowledge that
Wilburn has expressed his remorse for his conduct and stated it will not happen again. He has
met all of the terms of his probation, including
40 hours of community service. Wilburn has also
agreed to pay a monetary settlement to one of
the women involved and is in the process of
completing that obligation. He has attended
counseling sessions to develop appropriate conduct around women in public. We acknowledge
that no clients were harmed by Wilburn’s
actions.8
¶13 We are not persuaded that a private reprimand is the appropriate discipline to impose in
this case. Wilburn testified his law practice
required him to appear on a regular basis at the
Tulsa County Courthouse. His actions against
the security guards were done in a public government building where they could be observed
by anyone present at the time. Wilburn committed these actions while appearing there in the
capacity of a lawyer representing his client. He
thus brought discredit to the legal profession.
Indeed, it was necessary for the deputy sheriff to
pull him outside a room to the hallway of the
courthouse to ask him about the allegations.
These acts committed in the confines of the Tulsa
County Courthouse require a public reprimand.
We believe this serves to protect the public and
The Oklahoma Bar Journal
Vol. 77 — No. 19 — 7/15/2006
to advise other members of the Bar that inappropriate touching and sexually suggestive gestures and remarks will not be tolerated, regardless of whether they seem harmless, solicited or
consensual.
¶14 Wilburn’s citation to State ex rel. Oklahoma Bar Association v. Miskovsky, 1997 OK
55, 938 P.2d 744, as a reason to impose a private
reprimand in this case for less egregious conduct, is rejected. A predatory pattern of unprofessional conduct was noted there, in addition to
a lack of remorse, and a suspension of 60 days
was ordered. Miskovsky is distinguishable factually to this case and is thus inapplicable. He
also compares Foster, supra, to this case in support of his argument that a private reprimand is
sufficient discipline. He contends a public censure was ordered therein because a minor was
involved, implying it constituted a more serious
violation than the present case. While we
acknowledge the facts are distinguishable
because a minor was involved, the offensive
nature of Wilburn’s actions are no less serious
because his victims were over the age of sixteen
years.
¶15 In our decision in OBA v. Garrett, supra,
we note similar factual scenarios in which two
non-client female victims filed complaints
against the attorney which were charged initially as felonies. The charges were later reduced to
misdemeanors with one-year suspended sentences in each, running concurrently. Both
Respondent and Garrett showed remorse for
their actions and vowed to make changes in
their behavior. A public censure was ordered in
Garrett. The element of alcohol abuse and its
effect on Garrett’s behavior around the two victims, however, persuaded us that additional discipline of a one-year probation was warranted,
as well as directing him to attend Alcoholics
Anonymous (AA) and Lawyers Helping
Lawyers (LHL) meetings during that time. The
probationary period and the directive to maintain ties with AA and LHL were intended to
reinforce his efforts to maintain his sobriety and
his resolve to conduct himself appropriately in
public. The alcohol abuse is not present in this
case, and the probationary period is unnecessary. However, the public censure is the proper
discipline in this case.
CONCLUSION
¶16 We reject the recommendation of the Bar
and the Trial Panel to impose discipline of a private reprimand. The Respondent, Rhett Henry
Wilburn, is publicly censured for his conduct
constituting violations of ORPC 8.4(b) and
Vol. 77 — No. 19 — 7/15/2006
RGDP 1.3. Respondent is ordered to pay the
costs incurred in this proceeding in the amount
of $166.98 within ninety (90) days of the date of
this opinion.
¶17 PUBLICLY
IMPOSED.
CENSURED;
COSTS
WATT, C.J., WINCHESTER, V.C.J., LAVENDER, HARGRAVE, OPALA, KAUGER,
EDMONDSON, COLBERT, JJ. - CONCUR.
TAYLOR, J. - DISSENTS.
I respectfully dissent. It is important to note
that the record in this case shows that these
charges were originally felony sexual battery
counts. A plea agreement saw them reduced to
misdemeanor status. Wilburn entered pleas of
guilty to this outrageous conduct. This “outraging public decency” was committed at the Tulsa
County Courthouse by a lawyer against two
female courthouse security officers. This case
presents issues that strongly affect public confidence in our legal system. In order to effectively
safeguard the interests of the public, the courts
and the legal profession, I would suspend
Wilburn from the practice of law.
1. He was charged with “unlawfully, feloniously, willfully and
intentionally lewdly touching the body of [L.M.], a person over the age
of 16 years in a lewd and lascivious manner and without her consent
by slapping her on the buttocks and pressing his body against her buttocks in a hunching motion.” It is alleged that in the second count of
the criminal information, Wilburn “unlawfully, feloniously, willfully
and intentionally lewdly touching the body of [D.N.], a person over
the age of 16 years in a lewd and lascivious manner and without her
consent by striking her on her buttocks.”
2. Rule 8.4. Misconduct
It is professional misconduct for a lawyer to:
...
(b) commit a criminal act that reflects adversely on the lawyer’s
honesty, trustworthiness or fitness as a lawyer in other respects; . . . .
3. Rule 1.3. Discipline for acts contrary to prescribed standards
of conduct
The commission by any lawyer of any act contrary to prescribed standards of conduct, whether in the course of his professional capacity, or
otherwise, which act would reasonably be found to bring discredit
upon the legal profession, shall be grounds for disciplinary action,
whether or not the act is a felony or misdemeanor, or a crime at all.
Conviction in a criminal proceeding is not a condition precedent to the
imposition of discipline.
4. Despite this acknowledgment, however, he also stated he did
not know why they filed the charges. One of the women filed a civil
suit against him. A settlement has been reached, and he is in the
process of paying it.
5. Rule 6.12(c), RGDP, provides:
To warrant a finding against the respondent in a contested
case, the charge or charges must be established by clear and convincing evidence, and at least two of the members of the Trial
Panel must concur in the findings.
6. State ex rel. Oklahoma Bar Association v. Downes, 2005 OK 33,
121 P.3d 1058; State ex rel. Oklahoma Bar Association v. Anderson,
2005 OK 9, 109 P.3d 326.
7. State ex rel. Oklahoma Bar Association v. Garrett, 2005 OK 91,
127 P.3d 600; State ex rel. Oklahoma Bar Association v. Foster, 2000
OK 4, 995 P.2d 1138.
8. Although we are aware of circumstances, i.e., his cancer condition, his emergency appendectomy and the loss of his office sharing
arrangement following his arrest, which have made this disciplinary
proceeding and criminal conviction more difficult, we do not find
these circumstances constitute “mitigation.”
The Oklahoma Bar Journal
1993
2006 OK 53
DEWAYNE MONEYPENNEY,
Plaintiff/Appellant, v. RICHARD E.
DAWSON, Defendant/Appellee.
No. 101,311. July 5, 2005
CERTIORARI TO THE COURT OF CIVIL
APPEALS, DIVISION III
APPEAL FROM THE DISTRICT COURT
OF OKLAHOMA COUNTY, STATE OF
OKLAHOMA
HONORABLE CAROLYN R. RICKS, TRIAL
JUDGE
¶0 Plaintiff/Appellant, Dewayne Moneypenney (Plaintiff) filed a Petition for monetary relief
against Defendant/Appellee, Richard E. Dawson (Defendant) claiming damage to his residential real property was caused by water flowing onto Plaintiff’s lot by virtue of Defendant
having altered the natural water drainage or
flow on the latter’s own lot. Defendant filed a
motion to dismiss that asserted the suit was
time-barred based on the assertion the two year
statute of limitations had expired prior to the filing of Plaintiff’s Petition. The trial court sustained the motion and dismissed Plaintiff’s
entire case with prejudice. Plaintiff appealed. In
an unpublished opinion the Court of Civil
Appeals, Division III affirmed. We hold the trial
court erred.
CERTIORARI PREVIOUSLY GRANTED;
COURT OF CIVIL APPEALS’ OPINION
VACATED; TRIAL COURT ORDER
REVERSED AND MATTER REMANDED
FOR FURTHER PROCEEDINGS.
F. Smith Barnes, F. SMITH BARNES, A PROFESSIONAL CORPORATION, Oklahoma City,
Oklahoma for Plaintiff/Appellant.
Maurice G. Woods, II and Thomas M. Wright,
McATEE & WOODS, P.C., Oklahoma City, Oklahoma for Defendant/Appellee.
LAVENDER, J.
¶1 Plaintiff/Appellant, Dewayne Moneypenney (Plaintiff) filed a Petition (Petition 2) for
monetary relief against Defendant/Appellee,
Richard E. Dawson (Defendant) claiming damage to his residential real property was caused
by water flowing onto Plaintiff’s lot by virtue of
Defendant having altered the natural water
drainage or flow on the latter’s own lot. Defendant filed a motion to dismiss asserting the suit
was time-barred because the two year statute of
limitations found at 12 O.S. §95(A)(3) had
expired prior to the filing of Petition 2.1 The trial
1994
court sustained the motion and dismissed Plaintiff’s entire case with prejudice. Plaintiff
appealed. In an unpublished opinion the Court
of Civil Appeals (COCA), Division III affirmed.
We previously granted certiorari. Although the
two year statute of limitations of §95(A)(3) is
applicable, in that it cannot be determined as a
matter of law from the face of Petition 2 and a
similar Petition (Petition 1) filed by Plaintiff
against a different defendant in a prior case earlier dismissed without prejudice that the limitation period expired as to his entire claim for
monetary relief against Defendant prior to the
filing of Petition 2, we hold the trial court erred
in dismissing the case with prejudice.
We reverse the trial court Order dismissing the
case, vacate the COCA’s opinion affirming that
Order and remand to the trial court for further
proceedings.
¶2 The bar of the statute of limitations is an
affirmative defense. 12 O.S.2001, §2008(C)(18).
The burden is on a defendant to prove that a
plaintiff’s action is barred by the applicable
statute of limitations. Harper-Turner Oil Co. v.
Bridge, 1957 OK 124, 311 P.2d 947, 949. In reviewing a motion to dismiss like that filed by Defendant, an appellate court, like a trial court, is
required to take as true all of the challenged
pleading’s allegations, together with all reasonable inferences drawn from them. See Great
Plains Federal Sav. and Loan Ass’n v. Dabney, 1993
OK 4, 846 P.2d 1088, 1090 n. 3. Further, the committee comments concerning 12 O.S. §2012(B)(6)
of the Oklahoma Pleading Code (12 O.S.2001,
§2001 et seq., as amended) state that “a petition
should not be dismissed for failure to state a
claim unless it appears beyond doubt that the
plaintiff can prove no set of facts in support of
his claim which would entitle him to relief.”
Okla.Stat.Ann. tit. 12, §2012, Committee Comment to §2012 (West 1993). (citations omitted).
We believe no citation of authority is necessary
to recognize that a motion to dismiss of this type
raising a limitation bar should not be granted
and a case should not be dismissed with prejudice unless the face of the petition shows
beyond doubt the action is time-barred under
the applicable statute of limitations. Here, Petition 2 considered along with Petition 1 do not
facially show the entire claim against Defendant
is time-barred.
¶3 On March 1, 2004 Plaintiff filed Petition 2
against Defendant in Oklahoma County District
Court Case No. CJ-2004-1685, the underlying
case giving rise to this appeal. In full the body of
Petition 2 states:
The Oklahoma Bar Journal
Vol. 77 — No. 19 — 7/15/2006
COMES NOW the Plaintiff, Dewayne
Moneypenney, and for his cause of action
against the Defendant, Richard E. Dawson
... alleges and states:
1. Plaintiff is and all times mentioned in
this Petition was a resident of Oklahoma
County, State of Oklahoma. Defendant is a
resident of Oklahoma County, Oklahoma.
Property subject to this litigation is located
in Oklahoma City, Oklahoma County, Oklahoma.
2. On August 18, 2000, Plaintiff purchased residential property described as
7200 N.W. 129th Street, Oklahoma City,
Oklahoma.
3. In April, 2001, Defendant commenced
bringing in additional soil on [the] lot located at 13105 Dawson Court, Oklahoma City,
Oklahoma. Such lot is immediately behind
the residential lot owned by Plaintiff. In the
process of construction, the Defendant
added substantial amounts of soil and
caused the natural drainage to be altered.
4. As a result of the alteration of the natural water flow by Defendant, at such time
as rains occur or the adjoining lot owner
waters the grass, Plaintiff’s property is
flooded and damaged. This damage was
caused by the wrongful act of the Defendant
by the improper change in the natural flow
of water.
WHEREFORE, Plaintiff prays for judgment in an amount in excess of $10,000.00
against the Defendant, Richard E. Dawson,
together with attorney’s fees and court costs.
Boiled down, Petition 2 alleges Defendant
altered the natural topography of his own lot by
adding dirt to it and when it rains or Defendant
waters his own lawn, Plaintiff’s lot is flooded
and damaged.2 Obviously, if not expressly stated, a reasonable inference from Petition 2 is that
prior to the claimed alteration Plaintiff’s property did not flood and was not damaged from
water flowing or draining from Defendant’s lot
onto Plaintiff’s lot. Also, although Petition 2
does not put a label on his claim against Defendant, a fair reading of it plainly implies a wrongful and improper diversion of surface waters
from Defendant’s property onto Plaintiff’s property causing unspecified damage to Plaintiff’s
property and that the situation reoccurs when it
rains or Defendant waters his lawn.
Vol. 77 — No. 19 — 7/15/2006
¶4 In May 2004 Defendant filed a motion to
dismiss Petition 2 with prejudice asserting it
failed to state a claim upon which relief could be
granted based solely on the argument Plaintiff’s
claim was time-barred because the two year limitation period found at §95(A)(3) expired before
it was filed.3 Attached to the dismissal motion
was Petition 2. Also attached were a) Petition 1
that was filed in Oklahoma County District
Court in Case No. CJ-2001-7029 on September
14, 2001 that initiated a prior lawsuit by Plaintiff
against a Gary Dawson d/b/a DKG Companies
(hereafter DKG) and b) an Order of Dismissal
Without Prejudice filed in the prior lawsuit on
March 3, 2003. A review of Petition 1 reveals it
was based on substantially similar allegations as
quoted above from Petition 2. A review of the
Order of Dismissal Without Prejudice shows
that, in essence, the dismissal was based on a
failure to diligently prosecute.4
¶5 Defendant, at pg. 1 of a June 8, 2004 reply
to Plaintiff’s response to the dismissal motion,
informs that DKG “was involved in the building
of [D]efendant’s home on [D]efendant’s lot ....”
For the purposes of our disposition of this
appeal, we will assume that is true. We also note
that the record does not indicate any other relation between DKG, or the individual Gary Dawson, with Defendant, notwithstanding they
share the same last name. In any event, the only
noteworthy differences in Petition 1 and Petition
2 (other than the difference in defendants) are
that the earlier suit alleged additional soil was
brought onto two lots (rather than one) immediately behind Plaintiff’s lot (i.e., both onto 13105
Dawson Court and 13109 Dawson Court) and it
was, apparently, water from rain or lawn watering traveling from both adjoining lots (rather
than one) that caused flooding and damage to
Plaintiff’s real property.
¶6 In affirming the trial court’s dismissal
Order the COCA reasoned, in effect, that Plaintiff knew at some time between April 2001 (the
beginning of dirt addition to Defendant’s property) and September 14, 2001 (the date Petition 1
was filed against DKG) about the damage to his
house and/or lot by the alteration of the natural
water flow. Obviously, the September 14, 2001
date is more than two years before Petition 2
was filed on March 1, 2004.
¶7 There can be no question Plaintiff knew on
or before September 14, 2001, the date he filed
the previous suit against DKG, that the claimed
diversion of water from Defendant’s property
onto his own caused him some injury and that
the underlying instant case was initiated by Petition 2 more than two years after the September
The Oklahoma Bar Journal
1995
14, 2001 date, i.e., on March 1, 2004. However, in
view of the type of tort sued for here (or those of
a similar nature) merely because Plaintiff knew
of some injury to his property more than two
years prior to filing Petition 2 is insufficient at
the pleading stage to make a determination that
his entire claim is time-barred.
¶8 This Court has plainly recognized that a
landowner may not in diverting surface waters
from its usual and ordinary course collect and
convey it by the construction of artificial
embankments, ditches or the like from that person’s land onto the land of an adjoining neighbor causing injury to the latter’s property and
that such conduct is actionable. See City of Ardmore v. Orr, 1913 OK 50, 129 P. 867 (City’s grading of streets causing overflow on plaintiff’s
property); see also Allied Hotels, Ltd. v. Barden,
1964 OK 16, 389 P.2d 968 (increased flow of surface waters after construction of motel; also
involved damages from blasting and increased
water flow during construction). Plaintiff does
not allege in either Petition 1 or Petition 2
whether the damages he claims are permanent
or temporary, or a combination of the two. However, in his February 22, 2005 Petition for Writ of
Certiorari filed in this Court he seems to take the
position that the damages he seeks to recover
via the instant litigation are for “permanent
injury” to the interior of his house, somewhat
more specifically described as damage evidenced by a crack in the floor of his living room,
coupled with his observation of water in the
floor vents in the living area. Although Plaintiff
has used the phrase “permanent injury” to
describe such claimed damage we certainly cannot say on this record that it is actually of a permanent character. We do not believe at this stage
of the litigation on this record that Plaintiff’s use
of the word “permanent” forecloses him from
recovering or seeking any appropriate damages
to which he might show himself entitled. In any
event, whether Plaintiff seeks recovery for permanent or temporary damage or a combination
of the two it was error to dismiss his petition
at the pleading stage based on a limitation
time-bar.
¶9 As a general proposition, “[w]hen a cause
of an injury is abatable either by an expenditure
of labor or money, it will not be held permanent.” City of Ardmore v. Orr, 129 P. at 867 (Fourth
Syllabus by the Court). Further, both temporary
and permanent damage may be caused or arise
from a temporary, i.e., abatable nuisance or trespass. Herwig v. City of Guthrie, 1938 OK 257, 78
P.2d 793.5 An example of a form of abatement
would be the offending party putting some type
1996
of drainage system on his property so that no
further damage would be caused to the adjoining or neighboring landowner. See City of Ardmore v. Orr (negligence case against City where
Court recognized that City could enlarge sewers
or add additional sewers to carry off surface
waters that did not overflow plaintiff’s land
causing injury thereto prior to City’s grading a
street and its cross-streets). At this stage of the
litigation one must assume that Defendant has
(or had) it within his power to abate the claimed
reoccurring situation on his property alleged to
have caused damage to Plaintiff’s property by
some reasonable means, e.g., placement of an
adequate drainage system thereon.
¶10 In a case decided about a decade ago the
Court of Civil Appeals correctly stated the general rule applicable in cases of reoccurring, temporary damages caused by a nuisance susceptible of abatement. “To the extent damages caused
by a nuisance are temporary in nature — i.e.,
damages reasonably capable of abatement —
they will be held not permanent and the statute
[of limitations] will not begin to run until injury
is suffered.” N. C. Corff Partnership, Ltd. v. OXY
USA, Inc., 1996 OK CIV APP 92, 929 P.2d 288,
293, citing Elk City v. Rice, 1955 OK 203, 286 P.2d
275; City of Ardmore v. Orr, 1913 OK 50, 129 P.
867; Haenchen v. Sand Products Co., Inc.,1981 OK
CIV APP 6, 626 P.2d 332. For such temporary
damage a plaintiff may bring successive actions
each time the wrong occurs (see City of Ardmore
v. Orr) and the statute of limitations would bar
recovery only for damage occurring more than
two years prior to a suit’s filing. See Haenchen v.
Sand Products Co., Inc., 626 P.2d at 334. At this
stage of the litigation it cannot be said as a matter of law that Petition 2 shows on its face any
such temporary damage falls outside the two
year period.
¶11 As to any permanent damage Plaintiff
claims was caused, the period of limitation
would not commence for such “permanent
damage to realty until the damage is apparent
and it becomes obvious that such damage is of a
permanent character.” See Harper-Turner Oil Co.
v. Bridge, 1957 OK 124, 311 P.2d 947, 948 (First
Syllabus by the Court)(action for damages to
realty in nature of destruction of water well
caused by deleterious substance or substances
percolating and seeping into well by oil and/or
gas drilling operations). In the Harper-Turner
case this Court decided the limitation issue
involved a question of fact and that the trial
court had properly submitted the limitation
defense raised there to the jury for its determination. For a finding that the action was not
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Vol. 77 — No. 19 — 7/15/2006
time-barred the jury was required to find that
“plaintiffs must [have] commence[d] their lawsuit within two years from the time it became
apparent to them, or would be apparent to a reasonable person under the same circumstances,
that the injury was permanent ....” Harper-Turner
Oil Co., 311 P.2d at 950.
¶12 Neither Petition 1 nor 2 (nor anything else
in this record) shows that more than two years
before the filing of Petition 2 it was apparent to
Plaintiff or would have been apparent to a reasonable person under the same circumstances
that any damage to his realty was of a permanent nature. It therefore cannot be said as a matter of law at the pleading stage that any claim for
permanent damage is time-barred.
¶13 Of course, at this stage of the litigation,
i.e., the initial pleading stage, we do not know
what the actual facts are concerning Plaintiff’s
claim. However, a fair reading of Petition 2
posits a reoccurring tortious situation. Ultimately, the statute of limitations issue might be subject to jury determination or involvement and
might be dependent on facts concerning the
character of the cause of Plaintiff’s alleged damages and/or the type of damages, if any, he has
suffered. Further, the following from Commercial
Drilling Co. v. Kennedy, 1935 OK 232, 45 P.2d 534
(concerning continuing salt water pollution) is
potentially applicable:
[W]hen it becomes obvious that a permanent injury has been suffered by the real
estate, a cause of action for permanent
injuries accrues and the statute of limitations
begins to run as to the damages, present and
prospective, resulting exclusively from the
permanent injury then suffered. But the
statute cannot run as to damages which may
later be caused by future possible injuries
not yet inflicted by the possible continuance
of the abatable source of injury. We think the
trial court sufficiently excluded from the
consideration of the jury damages flowing
from injuries, permanent or temporary,
which may have occurred more than 2 years
before this action was commenced.
Id., 45 P.2d at 538. (citation omitted).
¶14 In sum, it cannot be determined from the
face of Petition 1 or 2 that the entire claim of
Plaintiff for which he seeks monetary relief is
barred by the statute of limitations found at 12
O.S. §95(A)(3). It was therefore error for the trial
court to have dismissed Plaintiff’s case with
prejudice on that basis.6
¶15 The opinion of the Court of Civil Appeals
is VACATED, the trial court Order dismissing
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with prejudice Plaintiff’s suit against Defendant
is REVERSED and the matter is REMANDED
TO THE TRIAL COURT FOR FURTHER PROCEEDINGS.
¶16 WATT, C.J., LAVENDER, HARGRAVE,
OPALA, KAUGER, EDMONDSON and COLBERT, JJ., concur.
¶17 WINCHESTER, V.C.J. and TAYLOR, J.,
dissent.
1. Though 12 O.S. §95 was amended in 2004 and 2005, the pertinent subsection in regard to this case, i.e., §95(A)(3), remains the same
today, with one caveat, as when the underlying lawsuit was filed by
Plaintiff/Appellant, Dewayne Moneypenny (Plaintiff) against Defendant/Appellee, Richard E. Dawson (Defendant) in March 2004. 2004
Okla.Sess.Laws, Ch.168, §1; 2005 Okla.Sess.Laws, Ch. 159, §1. The
caveat is that the subheading designation (A) was added by one of the
2004 amendments which did not take effect until after the instant suit’s
filing. The parties, both in the trial court and in their appellate submissions, and the Court of Civil Appeals (COCA) in its opinion,
understandably so, do not reference the subheading designation (A)
change. We do so as the designation is in the current version of §95
found at 12 O.S.Rev.Supp.2005, §95.
2. We assume “the adjoining lot owner” referred to in numbered
paragraph 4 of Petition 2 is Defendant.
3. Neither party disputes the applicability of §95(A)(3)’s two year
limitation period. We agree it is applicable and it provides:
A. Civil actions other than for the recovery of real property
can only be brought within the following periods, after the cause
of action shall have accrued, and not afterwards:
***
3. Within two (2) years: An action for trespass upon real
property; an action for taking, detaining, or injuring personal
property, including actions for the specific recovery of personal
property; an action for injury to the rights of another, not arising
on contract, and not hereinafter enumerated; an action for relief
on the ground of fraud -- the cause of action in such case shall
not be deemed to have accrued until the discovery of the fraud[.]
4. As noted in the text Defendant attached to his motion to dismiss
the Petition (Petition 1) filed in the prior case (Case No. CJ-2001-7029,
Oklahoma County District Court) and the Order of Dismissal Without
Prejudice entered therein. Title 12 O.S. §2012(B) provides in part:
If, on a motion asserting the defense numbered 6 of this subsection to dismiss for failure of the pleading to state a claim upon
which relief can be granted, matters outside the pleading are
presented to and not excluded by the court, the motion shall be
treated as one for summary judgment and all parties shall be
given reasonable opportunity to present all material made pertinent to the motion by the rules for summary judgment.
Neither party argues that attaching Petition 1 or the Order of Dismissal Without Prejudice in Case No. CJ-2001-7029 called into play
said part of §2012(B). Subsection 2012(B), including the quoted language, remains the same today as when Defendant filed his motion to
dismiss in May 2004. The current version of §2012 may be found at 12
O.S.Rev.Supp.2005, §2012. Although §2012 was amended in certain
particulars in 2004, subsection B thereof was not. 2004 Okla.Sess.Laws,
Ch.181, §5.
5. In the case of Oklahoma City v. Page, 1931 OK 764, 6 P.2d 1033
(Second Syllabus by the Court), this Court stated the following:
In an action for a nuisance which is temporary as a matter
of law, it is not error to refuse to require the plaintiff to elect
whether to claim “temporary damages” or “permanent damages,” because there may be several effects caused by the nuisance, one or more of which would be temporary and would
cease upon abatement of the nuisance, and one or more of which
would be permanent regardless of the abatement of the nuisance, and a plaintiff would be entitled to recover full compensation for the wrong, recovering for such temporary effects as
could be proved and for such permanent effects as could be
proved.
6. Both in the trial court and in his Petition for Writ of Certiorari
the Plaintiff relied on 12 O.S.2001, §100, seemingly alternatively, to
argue error in the dismissal of the instant underlying suit. The argument of the Plaintiff being that he filed Petition 2 prior to the expiration of one year from the dismissal without prejudice of the previous
The Oklahoma Bar Journal
1997
case he had filed against Gary Dawson d/b/a DKG Companies in
Case No. CJ-2001-7029. The Order of Dismissal Without Prejudice in
that case was filed on March 3, 2003 and the instant suit was filed on
March 1, 2004. In effect, the COCA rejected Plaintiff’s argument in
such regard because the defendants in the two actions were different.
Section 100 provides:
If any action is commenced within due time, and a judgment
thereon for the plaintiff is reversed, or if the plaintiff fail in such
action otherwise than upon the merits, the plaintiff, or, if he
should die, and the cause of action survive, his representatives
may commence a new action within one (1) year after the reversal or failure although the time limit for commencing the action
shall have expired before the new action is filed.
We decline to reach the §100 issue in the circumstances of this case.
2006 OK 54
STATE OF OKLAHOMA, ex rel.
OKLAHOMA BAR ASSOCIATION
Complainant, v. JAMES MICHAEL
ROGERS, Respondent.
indifference to legal obligations.”1 The Professional Responsibility Tribunal (hereinafter
“PRT”) determined that Respondent’s most
recent felony conviction arising out of his
November 8, 2003 arrest reflected adversely on
his fitness as a lawyer and is contrary to prescribed standards of conduct which can reasonably be found to bring discredit upon the
legal profession and recommended suspension
for two years and one day. After de novo
review, we agree with these findings, that discipline is warranted and the appropriate
amount of time for suspension is two years
and one day.
I
SCBD No. 5060, OBAD No. 1657. July 5, 2006
FACTS AND PROCEDURAL HISTORY
¶0 Complainant, Oklahoma Bar Association
(hereinafter “Complainant”) initiated attorney
disciplinary proceedings against Respondent/Attorney James Michael Rogers (hereinafter “Respondent”) for professional misconduct arising out of numerous alcohol-related
felony and misdemeanor convictions spanning
over a decade. A Professional Responsibility
Tribunal trial panel found misconduct and recommended suspension for two years and one
day. Held: Respondent is guilty of misconduct
and the appropriate discipline is suspension
for two years and one day.
¶2 Respondent was admitted to the bar on
April 17, 1992. At the time of the hearing before
the Professional Responsibility Tribunal,
Respondent was 44-years-old. The critical facts
in this matter relate to Respondent’s criminal
history, which, in summary consists of two
felony convictions and at least three
misdemeanor convictions2 arising from
alcohol-related criminal charges. The record
reveals the following timeline of Respondent’s
alcohol-related criminal convictions:
RESPONDENT SUSPENDED FROM THE
PRACTICE OF LAW FOR TWO YEARS
AND ONE DAY; RESPONDENT ORDERED
TO PAY COSTS.
Janis Hubbard, Assistant General Counsel,
Oklahoma Bar Association, Oklahoma City,
Oklahoma, for Complainant.
Gerald J. Lovoi of Tulsa, Oklahoma, for
Respondent.
Lavender, J.
¶1 Complainant commenced this proceeding
pursuant to Rule 6 of the Rules Governing Disciplinary Proceedings (hereinafter “RGDP”), 5
O.S. ch. 1, app. 1-A., and charged Respondent
with violating Rules 8.4(b) and 8.4(c) of the
Oklahoma Rules of Professional Conduct
(hereinafter “ORPC”), 5 O.S. 2001, ch. 1, app. 3A; and Rule 1.3 of the RGDP on the basis that
“Respondent’s repeated violations of Oklahoma’s legal standards prohibiting driving a
motor vehicle while intoxicated on alcohol
demonstrates a disregard for the law and an
1998
1. April, 1992: Respondent was arrested
for driving under the influence of alcohol (“DUI”), driving without a seatbelt, failing to stop at a red light, and
transportation of beer in an open container. The DUI charge was reduced
and Respondent was convicted of
impaired driving. Respondent was
sentenced to 40 hours of community
service, ordered to pay fines, and
required to complete DUI school.
2. November, 1994: Respondent was
arrested for DUI. Respondent entered
a guilty plea to a reduced charge of
impaired driving and Respondent was
sentenced to perform community service, complete DUI school, serve six
months of suspended jail time and pay
a fine.
3. July, 1998: Respondent was arrested
and convicted of a misdemeanor (upon
a plea of guilty) for DUI, sentenced to
one-year suspended sentence, ordered
to perform 40 hours of community
service and fined.
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Vol. 77 — No. 19 — 7/15/2006
4. December, 2002: Respondent was
arrested and convicted (upon a guilty
plea) for felony DUI and for the misdemeanor of driving under revocation of
driver’s license. Respondent received a
five year deferred sentence and a concurrent one year suspended sentence.
Additionally, Respondent was ordered
to perform 80 hours of community
service.
5. November, 2003: Respondent was
arrested and convicted (upon a guilty
plea)3 for felony DUI alcohol-second
offense4 and two misdemeanor counts
for leaving the scene of an accident
with damage to vehicle and another
for driving under revocation of driver’s license. Respondent was sentenced to five years on the felony conviction and one year on each of the
misdemeanor convictions with all
three counts to run concurrently.
¶3 Upon Respondent’s arrest in connection
with the November, 2003 incident, a motion to
accelerate deferred judgment and sentence
was filed in the Tulsa County District Court
and the Respondent’s sentences in the two
felony matters were accelerated, resulting in
Respondent’s incarceration with the Oklahoma Department of Corrections from April 4,
2004 until his release from prison on March 2,
2005. The record reflects Respondent is on probation currently and will remain on probation
until March 1, 2008. The conditions of Respondent’s probation are substance abuse evaluation and the installation of an ignition interlock
device on any vehicle Respondent will drive.
Additionally Respondent is required to successfully complete an outpatient substance
abuse counseling program as well as attend
anger management and “criminal sentiments”
groups.
¶4 The evidence reflects that at the time of
the hearing before the Professional Responsibility Tribunal, Respondent was in good standing with his probation and parole officer. In the
event Respondent violates the conditions of
his probation, a violation report will be submitted to the district court and to the district
attorney’s office with recommendations ranging from no sanctions to incarceration up to the
remainder of his original five-year sentence.
¶5 Respondent has admitted he has a substance abuse problem.5 Respondent received
Vol. 77 — No. 19 — 7/15/2006
in-patient treatment at the Narconon Arrowhead facility for alcohol dependency after his
motor vehicle accident/ felony DUI arrest in
November, 2003. Respondent was in-patient at
Narconon from December 1, 2003 through
March 3, 2004. He was thereafter taken into
Department of Corrections custody for incarceration on April 5, 2004. Prior to this inpatient treatment, the record reflects Respondent has sporadically attended Alcoholics
Anonymous meetings6, obtained some outpatient treatment therapy from providers at Indian Health Care Resource Center,7 as well as
completed a 72-hour detoxification program.
¶6 Complainant initiated its investigation in
the instant matter upon its receipt of a letter
from Respondent explaining the reasons for
Respondent’s failure to comply with his 2003
mandatory continuing legal education (hereinafter “MCLE”) requirements due to his inpatient substance abuse treatment and incarceration.8 Although Respondent was suspended from the Oklahoma Bar Association by
Order of this Court on July 1, 2004 due to
Respondent’s failure to complete his MCLE
requirements for 2003 and likewise suspended
on June 27, 2005 for noncompliance with
MCLE requirements for 2004, Notices of Reinstatement were filed as to both of these suspensions.9
¶7 Complainant lists in its Amended Complaint two items for Enhancement of Discipline as follows:
1. Respondent’s prior discipline administered by the Professional Responsibility
Commission on August 22, 1997 in OBAD
#1321 for neglect in representation of Mary
Baugh in a divorce case and failure to
respond to the Oklahoma Bar Association.
2. During Respondent’s May 15, 1997 deposition testimony in OBAD #1321, the
Respondent admitted to having difficulties with drinking in the past.
¶8 The Joint Stipulations of Fact document
(listed as Complainant’s Exhibit No. 5 to Complainant’s Trial Exhibits), which was signed by
the parties, contains Respondent’s “graduation
from Narconon Arrowhead in Canadian, OK”
as an item of mitigation in this matter.
The Oklahoma Bar Journal
1999
II
ANALYSIS
¶ 9 As a starting point, we note the standard
of review applicable in this proceeding is de
novo, which involves a full exploration of all
relevant facts and requires a complete record
made before the trial panel. State ex. rel. Oklahoma Bar Ass’n v. Doris, 1999 OK 94, 991 P.2d
1015. The record presented here is adequate for
de novo review. While we examine the findings
and recommendations of the Professional
Responsibility Tribunal as advisory, the ultimate responsibility for determination of
whether misconduct has occurred and what
discipline is warranted rests with this Court in
the exercise of exclusive original jurisdiction in
bar disciplinary matters. State ex rel. Oklahoma
Bar Ass’n v. Todd, 1992 OK 81, 833 P.2d 260, 262.
Finally, “[t]o warrant a finding against the
respondent in a contested case, the charge or
charges must be established by clear and convincing evidence.” Rule 6.13(c) of the RGDP;
State ex rel. Oklahoma Bar Ass’n v. Miskovsky,
1991 OK 88, 824 P.2d 1090, 1093. Clear and convincing evidence is “that measure or degree of
proof which produces in the mind of the trier
of fact a firm belief or conviction as to the truth
of the allegations sought to be established.”
State ex rel. Oklahoma Bar Ass’n v. Green, 1997
OK 39, ¶5, 936 P.2d 947, 949.
¶10 Complainant’s Amended Complaint
lists one count for which Respondent is
charged with violating Rules 8.4(b) and 8.4(c)
of the ORPC and Rule 1.3 of the RGDP for his
alcohol-related criminal convictions.10 Rule 8.4
provides in pertinent part as follows:
It is professional misconduct for a lawyer
to: . . .
(b) commit a criminal act that reflects
adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other
respects;
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
Rule 1.3 of the RGDP provides as follows:
The commission by any lawyer of any act
contrary to prescribed standards of conduct, whether in the course of his professional capacity, or otherwise, which act
would reasonably be found to bring discredit upon the legal profession, shall be
2000
grounds for disciplinary action, whether or
not the act is a felony or misdemeanor, or a
crime at all. Conviction in a criminal proceeding is not a condition precedent to the
imposition of discipline.
¶11 At the hearing before the PRT, Respondent presented only his own testimony as evidence in defense of the Complainant’s charges.
Respondent testified that his driving record
“speaks for itself” as to his “persistent pattern
of DUI arrests, finally leading to my conviction.” (Tr. at 12). While Rule 8.4(b) provides it
is professional misconduct for a lawyer to
commit a criminal act that reflects adversely on
that person’s fitness as a lawyer, “[w]e have
said ‘fitness to practice law’ encompasses more
than an absence of detriment to specific
clients.” State ex rel. Oklahoma Bar Ass’n v.
Aston, 2003 OK 101, ¶11, 81 P.3d 676, 678. Additionally, our cases clearly demonstrate our
view that substance abuse is incompatible with
the practice of law. Id. at ¶12, 81 P.3d at 679; In
re Pierce, 1996 OK 65, 919 P.2d 422, 426 (denial
of reinstatement upon a lawyer’s failure to
produce evidence demonstrating rehabilitation). We emphasize the following pronouncement, which is particularly applicable here:
Although a conviction for driving a motor
vehicle while under the influence of intoxicating liquor does not facially show a
lawyer’s unfitness to practice law [State ex
rel. Oklahoma Bar Ass’n v. Armstrong, 1990
OK 9, 791 P.2d 815] ‘a pattern of repeated
offenses, even ones of minor significance
when considered separately, can indicate
indifference to legal obligation.’
State ex rel. Oklahoma Bar Ass’n v. Doris, 1999
OK 94, n. 17, 991 P.2d 1015, 1026 (quoting Rule
8.4, Comment ORPC).
¶12 Respondent’s criminal record indeed
speaks for itself in terms of the pattern of
repeated alcohol-related offenses over a
decade and demonstrates clear and convincing
evidence of Respondent’s indifference to legal
obligation as well as acts that bring discredit
upon the legal profession. Respondent’s convictions for driving under revocation of driver’s license at the time of at least two of the
DUI arrests is further indicia of Respondent’s
indifference to legal obligation.
¶13 Respondent’s conduct and/or comments made in connection with the criminal
arrests as well as comments made during his
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Vol. 77 — No. 19 — 7/15/2006
testimony before the PRT11 reflect his indifference and even disregard to legal obligation.
During an interview with a law officer in connection with pre-sentencing investigation concerning Respondent’s first felony DUI conviction arising out of the December, 2002 arrest,
when asked why he drank alcohol and drove
without a valid driver’s license on the day of
that arrest, Respondent responded by describing himself as an “irresponsible idiot.”12 Additionally, during that interview with the law
officer, Respondent expressed no remorse for
his actions giving rise to his conviction for
DUI.13
¶ 14 Respondent’s conduct in leaving the
scene of the November, 2003 motor vehicle
accident with property damage (for which he
was convicted of a misdemeanor pursuant to
47 O.S. 2001, §10-10314) is demonstrative of
not only disregard for legal obligation, but
rises to the level of dishonesty as his actions
demonstrate an attempt to evade another
arrest for DUI.15 Although the record reflects
Respondent’s knowledge and awareness at the
time of the accident that a collision had
occurred (and his understanding at that time
of the consequences for his driving while
intoxicated), instead of providing any identifying information and/or assistance to the driver of the other vehicle involved in the accident,
(contrary to statutory duty to give information
and render aid pursuant to 47 O.S. 2001, §1010416) he walked and/or drove17 away from the
accident. The victim of the accident reported to
the police that Respondent had left the scene
and Respondent was eventually apprehended
six blocks away. This conduct is the basis for
the Complainant’s charge that Respondent
violated Rule 8.4(c), and we find that under the
circumstances of this case, Respondent’s conviction for leaving the scene of a motor vehicle
accident with property damage, which he
caused due to his driving while intoxicated,
constitutes clear and convincing evidence of
conduct involving dishonesty for which discipline is warranted pursuant to Rule 8.4(c). See
State v. Horton, 271 S.C. 413, 248 S.E.2d 263,
263-64 (1978) (concluding “[o]ne who leaves
the scene of an accident is fraudulently
attempting to relieve himself of any liability”
and leaving the scent of an auto accident “is
contrary to justice, honesty and good
morals.”); People v. Bautista, 217 Cal. App.3d 1,
265 Cal. Rptr. 661, 665 (Cal. App. 1990) ( concluding “a person convicted [for leaving the
Vol. 77 — No. 19 — 7/15/2006
scene of an injury automobile accident] has
exhibited an intent and purpose of concealing
his identity and also his involvement in an
injury-accident.”); see also In re Pistotnik, 254
Kan. 294, 864 P.2d 1166 (1993) (determining
respondent attorney in Kansas bar disciplinary
proceeding violated Rules 8.4(b)(d) & (g) of the
Kansas Rules of Professional Conduct when he
pled no contest to one count of leaving the
scene of an automobile accident).
¶ 15 Respondent’s prior discipline for professional misconduct may be considered for
enhancement of discipline. See State ex rel.
Oklahoma Bar Ass’n v. Aston, 2003 OK 101, ¶13,
81 P.3d 676, 679. Respondent received a private
reprimand by the Professional Responsibility
Commission in August, 1997 for his neglect in
representation of Mary Baugh in a divorce case
and failure to respond to the Oklahoma Bar
Association. Respondent’s deposition was
taken in connection with that proceeding in
May, 1997, wherein Respondent testified to his
difficulties with drinking in the past.18
Although in his earlier deposition Respondent
testified in effect that the reason for the neglect
of Ms. Baugh’s case was due in part to his hospitalization in 1996 for mental health issues,19
(Rogers May 15, 1997 Depo. Tr. at 9-10) his
more recent testimony before the Professional
Responsibility Tribunal in the instant matter
included Respondent’s acknowledgment that
the earlier hospital admission in 1996 was in
fact for alcohol-related “detox” treatment. (Tr.
at 26). If we were to assume the truth of
Respondent’s most recent testimony before the
PRT, his admission as to the reason for his 1996
hospitalization clearly demonstrates a connection between his drinking problem and his
neglect in the representation of his client, Ms.
Baugh, for which he previously received a
private reprimand.
¶16 Respondent argues no discipline is warranted here and that our imposition of any discipline would be tantamount to disciplining
Respondent for his addiction to alcohol alone.
Respondent relies primarily upon State ex rel.
Oklahoma Bar Ass’n v. Armstrong, 1990 OK 9,
791 P.2d 815 (and the related Armstrong case at
1992 OK 79, 848 P.2d 538), in support of his
position. We reject Respondent’s argument on
the basis that Armstrong, a Rule 7 summary
proceeding, is distinguishable from the instant
case.
The Oklahoma Bar Journal
2001
¶17 The pertinent facts of Armstrong are as
follows: Armstrong had one felony conviction
and two prior misdemeanor DUI convictions
for arrests spanning a period of three years,
Armstrong demonstrated evidence of being
sober and a “model of rehabilitation” for over
six years, and there were no complaints or allegations of professional misconduct against
Armstrong. Armstrong, 848 P.2d at 539. Additionally, the Trial Panel’s findings of fact in
Armstrong included the following findings:
Armstrong’s “reputation in the community
had been rehabilitated by his demonstrated
commitment to conquering his alcoholism; his
reputation as an attorney is one of integrity
and professionalism.” Id.
¶18 Here, Respondent’s criminal history is
more extensive and spans over a much longer
period of time. One critical factual distinction
is that unlike Respondent in this case, none of
Armstrong’s DUI convictions arose from a
motor vehicle accident, nor did Armstrong
leave the scene of any accident. Respondent’s
long term pattern of criminal misconduct
in this case clearly gives rise to professional
discipline.
¶19 While Respondent lists his in-patient
treatment in the Narconon facility as a mitigating factor, we cannot consider this evidence
weightily in mitigation due our inability to
gauge Respondent’s true motivation for entering into the treatment facility, given the timing
of his treatment admission while incarceration
was imminent. It is open to question whether
Respondent sought treatment in recognition of
his alcoholism or rather, in an attempt to delay
incarceration and/or affect sentencing on the
pending felony DUI charge. In order for alcoholism to be weightily considered in mitigation, “the offending attorney must recognize
his problem, and seek and cooperate in treatment.” State ex rel. Oklahoma Bar Ass’n v. Doris,
1999 OK 94,¶ 39, 991 P.2d 1015, 1025 (citation
omitted). Respondent has presented no evidence other than his own testimony regarding
his commitment to sobriety and participation
in substance abuse treatment programs. Additionally, Respondent has offered no evidence
regarding his reputation as an attorney. We
reject Respondent’s attempt to use his alcoholism as a shield against professional discipline where the facts clearly warrant the imposition of discipline.
2002
¶20 We are charged with the responsibility to
safeguard public interest and to protect the
judicial system. State ex rel. Oklahoma Bar Ass’n
v. Adams, 1995 OK 17, ¶ 18, 895 P.2d 701, 706. It
is clear that Respondent’s conduct leading to
his felony and misdemeanor convictions have
brought the bench and bar into disrepute.
Additionally, the facts of this case particularly
press us to fulfill our primary obligation to
protect the public, as the record contains evidence that based upon his criminal history,
Respondent is considered a threat to the community.20 In consideration of the pattern of
repeat alcohol-related offenses with the most
recent offense resulting in a motor vehicle accident with property damage and Respondent’s
conviction for felony DUI and misdemeanor
conviction for leaving the scene of the motor
vehicle accident, we must address this misconduct in a manner that will best protect the public. We further note that discipline imposed in
a Rule 6 proceeding is designed to deter the
respondent from further offending conduct as
well as deter other members of the Bar from
similar misconduct. See State ex rel. Oklahoma
Bar Ass’n v. Adams, 1995 OK 17, ¶ 18, 895 P.2d
701, 706. We therefore determine that suspension for two years and one day is the appropriate discipline. This length of time is particularly appropriate given the number and apparent escalation of severity of the offenses, and is
essentially co-extensive with Respondent’s
supervised probation, which terminates in
March of 2008.
¶21 Finally, we note that Respondent’s sobriety is the key to his rehabilitation. If Respondent chooses to seek reinstatement, “[a]ny
application for reinstatement filed by Respondent will be conditioned upon his continued
sobriety.” State ex rel. Oklahoma Bar Ass’n v.
Briery, 1996 OK 45, 914 P.2d 1046, 1050. Therefore, we refrain from ordering Respondent’s
participation in Alcoholics Anonymous or
Lawyers Helping Lawyers programs. It is
Respondent’s responsibility to participate in
these programs if he desires to regain membership in the Oklahoma Bar Association. See id.
III
SUMMARY
¶22 In sum, we have reviewed the record
before us and accepting the stipulated facts
entered into between the parties and accepted
by the Professional Responsibility Tribunal, we
find that the charges against Respondent have
The Oklahoma Bar Journal
Vol. 77 — No. 19 — 7/15/2006
been established by clear and convincing evidence. We adopt the recommendation of the
Oklahoma Bar Association and the Professional Responsibility Tribunal that Respondent be
suspended from practice of law for a period of
two years and one day from the date this opinion becomes final. Respondent is further
ordered to pay the costs of this proceeding in
the amount of $563.47, within thirty days of
the date this opinion becomes final.
¶23 RESPONDENT SUSPENDED FROM
THE PRACTICE OF LAW FOR TWO YEARS
AND ONE DAY; RESPONDENT ORDERED
TO PAY COSTS.
¶24 WATT, C.J., WINCHESTER, V.C.J.,
LAVENDER,
HARGRAVE,
OPALA,
EDMONDSON, TAYLOR and COLBERT, JJ.,
concur.
¶25 KAUGER, J., concurring in result.
Although I agree with the discipline
imposed, this proceeding should have been
brought under Rule 10.
1. Amended Complaint at ¶20.
2. The record also includes evidence of a conviction for drunkenness in May of 1994, for which he was assessed a fine and costs, as well
as a conviction for trespassing in July of 1997, also for which he was
assessed a fine and costs. This criminal record information is listed in
a Pre-Sentence Investigation Report (listed as Complainant’s Exhibit
#32 to Complainant’s trial exhibits), which was prepared by a case
manager for the Tulsa District Community Corrections and filed on
July 8, 2003 in the criminal case arising out of Respondent’s DUI arrest
in December, 2002. The parties in the instant matter do not list these
convictions, nor does the Complainant appear to rely on them in support of the disciplinary charges.
3. In the Findings of Fact-Acceptance of Plea document filed in the
Tulsa County District Court (listed as Complainant’s Exhibit #9E to
Complainant’s trial exhibits), Respondent stated the factual basis for
his guilty plea as follows: “In Tulsa County I drove an automobile
while intoxicated, caused a wreck with property damage, left the
scene, and while my license suspended, [sic].” Although the record
reflects the November, 2003 felony conviction was actually his second
felony DUI conviction, the Findings of Fact document indicates
Respondent’s representation therein that this was the first felony
charge and that he entered this guilty plea after “no prior felony convictions.”
4. The record reflects that Respondent refused to submit to breath
and/or blood alcohol tests upon both DUI arrests in December, 2002
and November, 2003. Additionally, the record reflects Respondent
twice declined to submit to urinalysis testing conducted by the Tulsa
District Community Corrections case manager in accordance with the
conditions of Respondent’s probation arising from his December, 2002
DUI conviction.
5. The record reflects Respondent has admitted to the use of alcohol, marijuana, cocaine, barbiturates, amphetamines, hallucinogens,
opiates, and “crystal meth.” He describes alcohol as his “drug of
choice,” that he began drinking as a teenager and drank daily from the
time he was 18-years-old until he was 23-years-old. Respondent has
had six “relapses” as an adult with the longest period of sobriety being
two years.
6. The Pre-Sentence Investigation Report filed in the district court
on July 8, 2003 (Complainant’s Exhibit #32) in connection with the
December, 2002 DUI arrest indicates Respondent produced no proof of
his attendance at Alcoholics Anonymous and/or Narcotics Anonymous meetings. This Report further reflects Respondent could not provide proof of income and/or any verification of his employment in
support of his claim that he was a self-employed attorney. The Report
Vol. 77 — No. 19 — 7/15/2006
further notes that a Social Security Wage Earnings Report indicated
Respondent has no reported FICA earnings for the past five years and
that Respondent had acknowledged his mother financially supported
him. (Pre-Sentence Investigation Report at 4). The Report also indicates Respondent showed no remorse for his actions leading to his
arrest. (Pre-Sentence Investigation Report at 6).
7. Respondent completed a substance abuse evaluation at the Indian Health Care Resource Center on February 14, 2003 and Respondent
was diagnosed as being alcohol dependent.
8. Respondent’s letter was directed to the MCLE Commission and
appears to have been treated as a request for a waiver of the twelve
credit hour educational requirement for 2003. This request was denied
and Respondent was suspended due to his failure to comply with
MCLE requirements prior to the Court’s issuance of the Order of suspension on July 1, 2004. Since Respondent was ultimately reinstated
after his suspension for non-compliance with MCLE for years 2003
and 2004, a reasonable inference from the record is that Respondent
completed his outstanding MCLE requirements and paid the requisite
late fees and reinstatement fees.
9. See SCBD-4929, indicating Respondent’s Notice of Reinstatement filed on September 2, 2005, ten days prior to entry of the Court’s
September 12, 2005 Order striking names of the attorneys from the
membership rolls of the Oklahoma Bar Association for failure to comply with the MCLE requirements for the year 2003. See SCBD-5076,
indicating Respondent’s September 2, 2005 Notice of Reinstatement
after suspension for noncompliance with MCLE requirements for
2004.
10. Count One of the Amended Complaint specifically notes three
alcohol-related criminal convictions (one misdemeanor DUI and two
felony DUI convictions) in support of the charges. Specificaly, Count
One sets forth the criminal convictions (in addition to facts derived
from the Affidavit of Probable Cause) arising out of the November,
2003 motor vehicle accident, the felony DUI arising out of that accident, as well as the misdemeanor convictions for leaving the scene of
the accident, and driving under revocation of license. Additionally,
Count One lists the December, 2002 felony DUI conviction and the
1998 misdemeanor DUI conviction. As noted in the criminal conviction timeline as set forth in the facts and procedural history section of
this opinion, the record indicates there are additional alcohol-related
convictions and other misdemeanor convictions on Respondent’s
criminal record for which the Complainant does not set forth in its
Amended Complaint or otherwise rely upon in support of the charges
here.
11. At the hearing before the Professional Responsibility Tribunal,
Respondent was asked about the conditions of his probation. (Tr. at 6366). Respondent explained he was ordered to attend anger management course and a criminal sentiments course as a result of his score
on certain tests which were administered during his substance abuse
evaluation. (Tr. at 65). Respondent testified concerning the reason he
was required to attend criminal sentiments class as follows:
Q: They just assume you’re angry?
A: Exactly. The criminal sentiments thing comes because they
ask you certain questions about the court, what your attitude is
about the courts and—
Q: They ask questions to really make you mad?
A: They didn’t make me mad, but what it was I showed insufficient deference to the judicial system in the questions. I knew I
should have fudged my answers to those, but that score, instead
of scoring me as an attorney, that scored me as an [sic] criminal,
if you catch my drift. So they wanted me to go to criminal sentiments class to overcome my cynicism.
(Tr. at 65).
12. Pre-Sentence Investigation Report (Complainant’s Exhibit #32)
at 2.
13. Pre-Sentence Investigation Report (Complainant’s Exhibit #32)
at 6.
14. 47 O.S. 2001, §10-103 provides in pertinent part as follows:
The driver of any vehicle involved in an accident resulting only
in damage to a vehicle which is driven or attended by any person shall immediately stop such vehicle at the scene of such accident or as close thereto as possible but shall forthwith return to
and in every event shall remain at the scene of such accident
until he has fulfilled the requirements of Section 10-104 of this
title. . . . Any person failing to stop or comply with said requirements under such circumstances shall be guilty of a misdemeanor and upon conviction thereof shall be punished by a fine
not to exceed Five Hundred Dollars ($500.00) or by imprisonment in the county jail for not more than one (1) year, or by both
such fine and imprisonment. In addition to the criminal penalties imposed by this section, any person violating the provisions
The Oklahoma Bar Journal
2003
of this section shall be subject to liability for damages in an
amount equal to three times the value of the damage caused by
the accident. Said damages shall be recoverable in a civil action.
...
Id.
15. Respondent explained his actions giving rise to the November,
2003 motor vehicle accident and DUI conviction in a letter to the Complainant as follows:
“I might mention that the accident was caused by my vehicle,
being completely dry of brake fluid. Also, I might add that the
“leaving the scene. . . .” counts [sic] reflects my effort to walk a
block or so to my then-girl friend’s place to inform her that I was
going to the pen rather than reflecting any effort to evade arrest.
As neither of these facts negates any elements of the offense,
they don’t seem to merit a lot of focus on my past, except as they
might pertain to any issues of willfulness.”
(Complainant’s Exhibit #10, Letter of August 5, 2004).
16. 47 O.S. 2001, §10-104 provides in pertinent part as follows:
A. The driver of any vehicle involved in an accident resulting in injury to or death of any person or damage to any vehicle
which is driven or attended by any person shall give his correct
name, address and registration number of the vehicle he is driving, and
shall upon request exhibit his driver license and his security verification form . . . to the person struck or the driver or occupant
of or person attending any vehicle collided with, and shall render to any person injured in such accident reasonable assistance.
...
Id. (emphasis added).
17. The arresting police officer’s handwritten probable cause affidavit indicates Respondent walked away from the scene of the accident. (Complainant’s Exhibit #9B). However, the formal criminal
count for the offense filed with the District Court on November 14,
2003 indicates Respondent did not stop his vehicle at the scene of the
accident, but rather, continued to drive his vehicle until his apprehension. (Complainant’s Exhibit #9G).
18. Although Respondent stipulated to this specific earlier admission in his 1997 deposition, the deposition transcript includes Respondent’s additional testimony as follows: “Well, I have had difficulties
with drinking in the past. And although, thank God, those haven’t
been a problem in a long time. I’m rather cautious about it, particularly when I am being deposed.” (Rogers May 15, 1997 Depo. Tr. at 17).
19. Respondent testified that he entered the hospital after having
“like a serious, serious nervous breakdown, what they used to call a
nervous breakdown, during ‘96, to the point where I couldn’t even
look up law, or to the point where like if Law and Order came on, I
would change channels.” (Rogers May 15, 1997 Depo. Tr. at 5). Later
during his deposition testimony, Respondent described his mental
condition that prompted hospitalization in 1996 as “flipping out.”
(Rogers May 15, 1997 Depo. Tr. at 10).
20. Judicial Review Hearing Report (filed in the District Court in
the November, 2003 criminal case) at 3 (listed as Complainant’s Exhibit #34). At the hearing before the PRT, Respondent testified that he is
not a threat to the community. (Tr. at 39).
2006 OK 55
STATE OF OKLAHOMA ex rel. Oklahoma
Bar Association, Complainant, v. HOWARD
STEVEN MILLER, Respondent.
SCBD No. 5084. June 29, 2006
¶0 ORDER APPROVING RESIGNATION
FROM OKLAHOMA BAR ASSOCIATION
PENDING DISCIPLINARY PROCEEDINGS
AND IMPOSING COSTS
¶1 Upon consideration of the complainant’s,
Oklahoma Bar Association (Bar Association),
application for ruling on the record and application for an order approving the resignation of
the respondent, Howard Steven Miller
(Miller/respondent), pending disciplinary
proceedings, the application reveals:
2004
1) On May 16, 2006, following the commencement of a hearing before the Professional Responsibility Tribunal, the
respondent submitted his written affidavit of resignation from membership
in the Bar Association pending investigation of a disciplinary proceeding.
2) The respondent’s affidavit of resignation reflects that: a) it was freely and voluntarily rendered; b) he was not subjected to coercion or duress; and c) he was
fully aware of the consequences of submitting the resignation. The respondent
states that although he is aware that the
resignation is subject to the approval of
the Oklahoma Supreme Court, he will
treat it as effective on the date of filing.
3) The respondent states in his affidavit of
resignation that he is aware of a formal
complaint filed against him in this Court
on July 5, 2005. The complaint contains
four counts. The first count involves
multiple instances of the respondent’s
unauthorized practice of law while
under suspension for failure to comply
with mandatory continuing legal education requirements and misrepresentations associated therewith. Two counts
deal with the respondent having accepted payments from clients, his failure to
communicate and his inaction in the
causes. The fourth count relates to his
failure to comply with Rule 9.1, Rules
Governing Disciplinary Proceedings, 5
O.S. 2001, Ch. 1, App. 1-A, while under
suspension. Also noted in the complaint
is the respondent’s prior receipt of a private reprimand from the Professional
Responsibility Commission. Rules 5.2
and 9.1, Rules Governing Disciplinary
Proceedings, 5 O.S. 2001, Ch. 1, App. 1A; Rules 1.1, 1.2, 1.3, 1.4, 1.7, 1.16, 3.3,
4.3, 4.4, 5.5 and 8.4, Rules of Professional Conduct, 5 O.S. 2001 Ch.1, App. 3-A.
4) The respondent waives any and all
rights to contest the allegations.
5) An attorney, who is the subject of an
investigation into, or a pending proceeding involving allegations of misconduct, may resign membership in the
Oklahoma Bar Association by complying with the prerequisites for resignation set forth in Rule 8.1, Rules Governing Disciplinary Proceedings, 5 O.S.
The Oklahoma Bar Journal
Vol. 77 — No. 19 — 7/15/2006
2001, Ch. 1, App. 1-A. In response, the
Supreme Court may enter an order
approving the resignation or, in the
alternative, may refuse to approve the
resignation and allow the Professional
Responsibility Commission to proceed.
counsel. Repayment to the Client Security Fund
for any monies expended because of the malfeasance or nonfeasance of the respondent shall be
a condition of reinstatement along with the payment of $706.87 as costs incurred in the disciplinary proceeding.
6) The respondent’s resignation pending
disciplinary proceedings is in compliance with all of the requirements set
forth in Rule 8.1, Rules Governing Disciplinary Proceedings, 5 O.S. 2001, Ch. 1,
App. 1-A, and it should be approved.
¶4 DONE BY ORDER OF THE SUPREME
COURT IN CONFERENCE THIS 29TH DAY OF
JUNE, 2006.
7) The official roster address of the respondent as shown by the Bar Association
records is: 6205 E. 100th St., P.O. Box
55424, Tulsa, Oklahoma 74155-1424.
8) The respondent has acknowledged that
he will pay the agreed costs of $706.87
prior to the filing of any application for
reinstatement. Supplemental costs
requested by the Bar Association in its
application to assess costs should not be
imposed.
9) The respondent acknowledges that: a)
his actions may result in claims against
the Client Security Fund and agrees to
reimburse the Fund for any disbursements made because of his actions prior
to the filing of any application for reinstatement; and b) he has familiarized
himself with Rule 9.1, Rules Governing
Disciplinary Proceedings, 5 O.S. 2001,
Ch. 1, App. 1-A with which he agrees to
comply within twenty (20) days following the date of his resignation.
¶2 IT IS THEREFORE ORDERED,
ADJUDGED, AND DECREED that the resignation of Howard Steven Miller pending disciplinary proceedings be approved. Costs of the proceeding in the amount of $706.87 are imposed.
¶3 IT IS FURTHER ORDERED, ADJUDGED,
AND DECREED THAT the name of Howard
Steven Miller be stricken from the roll of attorneys. Because resignation pending disciplinary
proceedings is tantamount to disbarment, the
respondent may not make application for reinstatement prior to the expiration of five (5) years
from the date of this order. Pursuant to Rule 9.1,
Rules Governing Disciplinary Proceedings, 5
O.S. 2001, Ch. 1, App. 1-A, the respondent shall
notify all of his clients having legal business
pending with him within twenty (20) days, by
certified mail, of his inability to represent them
and of the necessity for promptly retaining new
Vol. 77 — No. 19 — 7/15/2006
/s/ Joseph M. Watt
JOSEPH M. WATT
CHIEF JUSTICE
WATT, C.J., LAVENDER, HARGRAVE,
OPALA, KAUGER, EDMONDSON, TAYLOR,
COLBERT, JJ. concur.
WINCHESTER, V.C.J., concurring in part and
dissenting in part:
¶1 I would order the respondent to pay the
additional costs incurred.
2006 OK 56
STATE OF OKLAHOMA ex rel. Oklahoma
Bar Association, Complainant, v. DAVID
THOMAS MARSH, Respondent.
SCBD No. 5178. June 29, 2006
¶0 ORDER APPROVING RESIGNATION
FROM OKLAHOMA BAR ASSOCIATION
PENDING DISCIPLINARY PROCEEDINGS
AND IMPOSING COSTS
¶1 Upon consideration of the complainant’s,
Oklahoma Bar Association (Bar Association),
emergency application for ruling on the record
and application for an order approving the resignation of the respondent, David Thomas
Marsh (Marsh/respondent), pending disciplinary proceedings, the application reveals:
1)
On May 24, 2006, the respondent submitted his written affidavit of resignation from membership in the Bar Association pending investigation of a disciplinary proceeding.
2)
The respondent’s affidavit of resignation reflects that: a) it was freely and voluntarily rendered; b) he was not subjected to coercion or duress; and c) he was
fully aware of the consequences of submitting the resignation. The respondent
states that although he is aware that the
resignation is subject to the approval of
the Oklahoma Supreme Court, he will
treat it as effective on the date of filing.
The Oklahoma Bar Journal
2005
3)
The respondent states in his affidavit of
resignation that he is aware of a formal
complaint filed against him in this Court
on March 31, 2006. The complaint contains ten counts. Eight of the counts
involve the misuse of client funds, the
forging of endorsements, the issuance of
bad checks in settlement proceedings
and allowing trust account balances to
fall both below the amount of client
funds deposited and into negative balances. The last two accounts relate to the
respondent’s issuance of bad checks to a
Court Clerk and to other governmental
agencies. The affidavit of resignation
also acknowledges that a grievance has
been filed against him by an employee
for a bad check issued to cover the
employee’s salary. Rules 1.3, 1.4 and 5.2,
Rules Governing Disciplinary Proceedings, 5 O.S. 2001, Ch. 1, App. 1-A; Rule
1.15, Rules of Professional Conduct, 5
O.S. Supp. 2004, Ch. 1, App. 3-A and
Rules 8.1 and 8.4, Rules of Professional
Conduct, 5 O.S. 2001 Ch.1, App. 3-A.
4)
The respondent waives any and all
rights to contest the allegations.
5)
An attorney, who is the subject of an
investigation into, or a pending proceeding involving allegations of misconduct, may resign membership in the
Oklahoma Bar Association by complying with the prerequisites for resignation set forth in Rule 8.1, Rules Governing Disciplinary Proceedings, 5 O.S.
2001, Ch. 1, App. 1-A. In response, the
Supreme Court may enter an order
approving the resignation or, in the
alternative, may refuse to approve the
resignation and allow the Professional
Responsibility Commission to proceed.
6)
The respondent’s resignation pending
disciplinary proceedings is in compliance with all of the requirements set
forth in Rule 8.1, Rules Governing Disciplinary Proceedings, 5 O.S. 2001, Ch. 1,
App. 1-A, and it should be approved.
7)
The official roster address of the respondent as shown by the Bar Association
records is: 15 W. 6th St., Ste. 1701, Tulsa,
Oklahoma 74119-5411.
8)
The Bar Association has incurred costs
of $846.43 which the respondent agrees
to pay prior to the filing of any application for reinstatement.
2006
9)
The respondent acknowledges that: a)
his actions may result in claims against
the Client Security Fund and agrees to
reimburse the Fund for any disbursements made because of his actions prior
to the filing of any application for reinstatement; and b) he has familiarized
himself with Rule 9.1, Rules Governing
Disciplinary Proceedings, 5 O.S. 2001,
Ch. 1, App. 1-A with which he agrees to
comply within twenty (20) days following the date of his resignation.
¶2 IT IS THEREFORE ORDERED,
ADJUDGED, AND DECREED that the resignation of David Thomas Marsh pending disciplinary proceedings be approved. Costs of the proceeding in the amount of $836.43 are imposed.
¶3 IT IS FURTHER ORDERED, ADJUDGED,
AND DECREED THAT the name of David
Thomas Marsh be stricken from the roll of attorneys. Because resignation pending disciplinary
proceedings is tantamount to disbarment, the
respondent may not make application for reinstatement prior to the expiration of five (5) years
from the date of this order. Pursuant to Rule 9.1,
Rules Governing Disciplinary Proceedings, 5
O.S. 2001, Ch. 1, App. 1-A, the respondent shall
notify all of his clients having legal business
pending with him within twenty (20) days, by
certified mail, of his inability to represent them
and of the necessity for promptly retaining new
counsel. Repayment to the Client Security Fund
for any monies expended because of the malfeasance or nonfeasance of the respondent shall be
a condition of reinstatement along with the payment of $836.43 as costs incurred in the disciplinary proceeding.
¶4 DONE BY ORDER OF THE SUPREME
COURT IN CONFERENCE THIS 29TH DAY OF
JUNE, 2006.
/s/ Joseph M. Watt
JOSEPH M. WATT
CHIEF JUSTICE
ALL JUSTICES CONCUR.
2006 OK 57
DAVID WEI PAN, an individual, and
XIAOLU WANG, an individual,
Plaintiffs/Respondents v. MARK BANE, an
individual, and MARTA BANE, an
individual Defendants/Petitioners.
No. 102,233. July 5, 2006
INTERLOCUTORY CERTIORARI
PREVIOUSLY ISSUED TO THE DISTRICT
The Oklahoma Bar Journal
Vol. 77 — No. 19 — 7/15/2006
COURT OF TULSA COUNTY, HONORABLE
RONALD SHAFFER
¶0 Defendants/petitioners bring a certified, interlocutory appeal from the trial
court’s order granting the plaintiffs’/
respondents’ motion to amend their petition in order to add a new defendant and
relate back to the original petition after the
statute of limitations had run, pursuant to
12 O.S. 2001, §2015(C).
AFFIRMED
Adam Scott Weintraub, SAVAGE, O’DONNELL, AFFELDT, WEINTRAUB & JOHNSON,
for Petitioners, Tulsa, Oklahoma.
Keith E. Wagner, Roni S. Rierson, Marcus N.
Ratcliff, Brian J. Goree, LATHAM, STALL,
WAGNER, STEELE & LEHMAN, Tulsa,
Oklahoma.
EDMONDSON, J.
¶1 The question before us in this accelerated
review is whether, under these circumstances,
plaintiffs’ amendment to their petition adding
a new party and a new theory of recovery after
the expiration of the statute of limitations
properly “relates back” under the provisions
of 12 O.S. 2001, §2015(C), to the date the action
was originally commenced. We find that it
does and that the statute was correctly applied
by the trial court. Certiorari was previously
granted on defendants’ petition to review the
certified interlocutory order of the Tulsa County District Court and we affirm that court’s
order allowing the amendment.
¶2 This case arose from an automobile accident on March 1, 2003, involving a vehicle
owned and occupied by plaintiffs, David Pan
and his wife, Xiaola Wang, and a vehicle
owned by defendants, Mark and Marta Bane.
The material facts are not disputed. The Banes’
minor daughter, Lacey Bane, was driving their
automobile and this fact was shown in the
accident report. On December 1, 2004, Mr. Pan
and his wife filed a negligence action seeking
damages for property and personal injuries
sustained in the accident. Mark and Marta
Bane and their insurance carrier, American
Commerce, were named as defendants and
were timely served within the 180 days
allowed by 12 O.S. § 2004(I). The petition omitted Lacey as a defendant; instead, it alleged
Mr. and Mrs. Bane had “negligently operated”
the vehicle and caused the collision. In their
Vol. 77 — No. 19 — 7/15/2006
answer, Mark and Marta Bane did not state
that they were not driving; instead, they
denied being “negligent in the happening of
the subject incident.” Plaintiffs subsequently
dismissed their action against the insurer.
¶3 The statute of limitations expired on
March 1, 2005. In late April 2005, the plaintiffs
discovered they had mistakenly identified
Lacey’s parents as the negligent operators of
their vehicle. On April 28, 2005, plaintiffs filed
their motion seeking leave to file an amended
petition pursuant to §2015(C), to add Lacey as
a defendant in the negligence claim and to add
negligent entrustment as a theory of recovery
against Mark and Marta Bane.
¶4 Plaintiffs contended below, as they do on
appeal, that the amended petition related back
to the filing of the original petition pursuant to
the provisions of the statute. They argued
Lacey had constructive notice of the commencement of the action, as notice should be
imputed to her from her parents because of the
identity of interest between them; specifically,
that she was a minor living in her parents’
home, had been driving her parents’ vehicle,
and knew or should have known when her
parents were sued that the action would have
been brought against her but for the mistake as
to the identity of the proper party. They also
stressed that Lacey and her parents were covered under the same insurance policy, that
their insurer had been on notice since the
beginning of the suit, and that they also shared
the same counsel. Defendants objected, arguing the action was barred by the statute of limitations and the facts of this action were not
within the reach of §2015(C).
¶5 The trial judge granted plaintiffs’ motion
and plaintiffs filed their amended petition and
served Lacey with summons on May 25, 2005.
The trial court certified its order for interlocutory appeal and entered an order staying the
action. Resolution of this question involves the
interpretation and application of a statute to
undisputed facts, which is a question of law
that we review de novo. Manley v. Brown, 1999
OK 79, 989 P.2d 448.
¶6 New parties or claims may not be added
to a civil action by amendment to pleadings
after the statute of limitations has run unless
the requirements governing the relation back
of amendments set forth in 12 O.S. 2001,
§2015(C), have been satisfied. That statute
provides:
The Oklahoma Bar Journal
2007
C. RELATION BACK OF AMENDMENTS.
An amendment of a pleading relates back to
the date of the original pleading when:
1. Relation back is permitted by the law that
provides the statute of limitations applicable to
the action; or
2. The claim or defense asserted in the
amended pleading arose out of the conduct,
transaction, or occurrence set forth or attempted to be set forth in the original pleading; or
3. The amendment changes the party or the
naming of the party against whom a claim is
asserted if paragraph 2 of this subsection is satisfied and, within the period provided by subsection I of Section 2004 of this title for service
of the summons and petition, the party to be
brought in by amendment:
a. Has received such notice of the institution
of the action that he will not be prejudiced in
maintaining his defense on the merits; and
b. Knew or should have known that, but for
a mistake concerning the identity of the proper party, the action would have been brought
against him.
An amendment to add an omitted counterclaim does not relate back to the date of the
original answer.
The delivery or mailing of process to the
Attorney General of Oklahoma, or an agency
or officer who would have been a proper
defendant if named, satisfies the requirements
of subparagraphs a and b of this paragraph
with respect to the State of Oklahoma or any
agency or officer thereof to be brought into the
action as a defendant.
¶7 Because the Oklahoma Pleading Code, 12
O.S. §§2001 et seq., is based on the Federal
Rules of Civil Procedure, we rely on federal
authority for guidance as to the construction of
corresponding sections of our statutes. Section
§2015(C) is virtually identical to Rule 15(c) of
the Federal Rules of Civil Procedure and we
have adopted the construction placed upon it
by the federal courts.1 Dotson v. Rainbolt, 1995
OK 39, 894 P.2d 1109, 1113; Prough v. Edinger,
Inc., 1993 OK 130, 862 P.2d 71, 74.
¶8 The general philosophy of modern pleading rules is that they should give fair notice of
the claim and be subject to liberal amendment,
be liberally construed so as to do substantial
justice, and decisions should be made on the
2008
merits rather than on technical niceties. 5
Wright & Miller, Federal Practice and Procedure: Civil 3d §§1202, 1215-1226. Addressing
the philosophy and purpose of the federal
rules in Foman v. Davis, 371 U.S. 178, 181, 83
S.Ct 227, 229, 9 L.Ed.2d 222(1962), the Supreme
Court stated: “It is too late in the day and
entirely contrary to the spirit of the Federal
Rules of Civil Procedure for decisions on the
merits to be avoided on the basis of . . . mere
technicalities. ‘The Federal Rules reject the
approach that pleading is a game of skill in
which one misstep by counsel may be decisive
to the outcome and accept the principle that
the purpose of pleading is to facilitate a proper
decision on the merits.’ Conley v. Gibson, (citation omitted). The Rules themselves provide
that they are to be construed ‘to secure the just,
speedy, and inexpensive determination of
every action.’ Rule 1.”
¶9 The relation back doctrine of Federal Rule
15(c) is remedial and promotes the general
purpose of the federal rules by “providing the
opportunity for a claim to be tried on its merits rather than being dismissed on procedural
technicalities, when the policy behind the
statute of limitations has been addressed.” 3
Moore’s Federal Practice, § 15.19[3][a]( 3d ed.at
15-84). The rationale of the doctrine is that
where the party to be added2 has received
timely and fair notice of the institution of the
original action and the facts upon which it is
based, he has received all the notice and protection required by the statute of limitations
which exists to protect defendants from prejudice that may result from having to defend
against stale claims. See e.g., Bloomfield Mech.
Contracting, Inc. v. Occupational Safety & Health
Review Comm’n, 519 F.2d 1257, 1262 (3d Cir.
1975) (purpose of relation back is to “ameliorate the effect of a statute of limitations where
the plaintiff has sued the wrong party but
where the right party has had adequate notice
of the institution of the action”); Rendall-Speranza v. Nassim, 107 F.3d 913, 918 ( D.C. Cir.1997)
(The purpose of the rule is to “avoid the harsh
consequences of a mistake that is neither prejudicial nor a surprise to the misnamed party. A
potential defendant who has not been named
in a lawsuit by the time the statute of limitations has run is entitled to repose — unless it is
or should be apparent to that person that he is
beneficiary of a mere slip of the pen, as it
were.”); Lacedra v. Donald D. Wyatt Detention
Facility, 334 F.Supp.2d 114, 127 (D.R.I. 2004) (in
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Vol. 77 — No. 19 — 7/15/2006
a proper case the doctrine ensures that new
parties cannot use the statute of limitations to
prevent litigation of claims when they received
sufficient notice of the proceedings or were
practically involved in the proceedings from
the early stages of litigation).
¶10 Three requirements must be met in order
for an amendment adding a new party to
relate back to the original filing of the action.
The first, same transaction, is satisfied in this
case. Defendants concede the amended complaint arises from the same occurrence asserted
in the claim of the original petition. This controversy concerns the other requirements. The
second requirement is that the party to be
added must have received timely notice and
will not be prejudiced in maintaining a
defense. The third requirement is that the
party to be added, within the specified time
period, knew or should have known that but
for the mistake of identity the action would
have been brought against him or her. Defendants contend Lacey did not receive timely
notice of the suit. They concede that her parents received timely notice, but they argue
notice cannot be imputed to her and that she
would be prejudiced if the amendment is
allowed to relate back and she is forced to
oppose the action on the merits. They also
argue the third requirement was not met as
there was no showing that Lacey knew or
should have known that but for the mistake
the action originally would have been brought
against her. Additionally they contend the
omission of her name from the original complaint was not a “mistake of identity” within
the contemplation of the statute. We find all
the criteria were clearly satisfied and the
amendment was properly held to relate back.
¶11 The second requirement, timely notice,
has been characterized as the “linchpin” of
relation back doctrine. Schiavone, 477 U.S. at 31.
Notice of the pendency of the action may be
actual or constructive, formal or informal, but
it must be received by the party to be added
within the requisite time period and it must be
such that the new party will not be prejudiced
in maintaining a defense. See generally, 3
Moore’s Federal Practice, §15.19[3][c](3d. ed);
6A Wright, Miller & Kane, 6A Federal Practice
& Procedure: Civil 2d §1498. The requirement
of timely notice “serves as the yardstick used
for evaluating whether or not amending the
complaint will cause the new defendant to suffer prejudice if he or she is forced to defend the
Vol. 77 — No. 19 — 7/15/2006
case on the merits.” Lacedra, 334 F.Supp.2d at
128.
¶12 If the party to be added has a sufficient
identity of interest with the original defendant,
constructive notice will be imputed to the former, thereby satisfying the notice requirement
for relation back where it will not be prejudicial. Korn v. Royal Caribbean Cruise Line, Inc. 724
F.2d 1397, 1401(9th Cir. 1984). Imputing notice
in this method is widely accepted by the courts
and is based on the idea that an identity of
interest exists where the original party and the
new party are so closely related in their business operations or other activities that the
institution of an action against one serves to
provide notice of the litigation to the other. 6A
Wright, Miller & Kane, Federal Practice and
Procedure, Civil 2d §1499; 3 Moore’s Federal
Practice, §15. 19[3][c](3d ed.).
¶13 In Traveler’s Indemnity Co. v. United States
for Use of Const. Specialties Co., 382 F.2d 103
(10th Cir. 1967), the Tenth Circuit Court of
Appeals held an amendment substituting a
subsidiary surety company of the parent insurance carrier for the parent corporation properly related back to the original filing pursuant to
the provisions of prior Rule 15(c), where the
two companies were closely related; among
other things they had the same managers and
directors, occupied the same office and their
activities supplemented one another. The
Court also noted the parent company had not
suggested in its responsive pleadings that it
was not the proper party to be sued until after
the statute of limitations had expired; instead it
“hid in the bushes and. . .struck the plaintiff
from ambush.” In light of those facts, the U.S.
Court of Appeals affirmed the trial court’s
finding that the subsidiary had been sufficiently “apprised of the pendency of the action and
given adequate notice” by service to the parent
company. Id. at 106.
¶14 The Tenth Circuit recognized that “denying the addition of a party who has a close
identity of interest with the old party when the
added party will not be prejudiced” does not
serve the purpose of the federal rules as the
“ends of justice are not served when forfeiture
of just claims because of technical rule is
allowed, “ and reasoned that amendments
should therefore be granted freely as justice
requires, and a trial court’s decision allowing
an amendment should be reversed only for a
clear abuse of discretion. Id. at 106. Accord,
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2009
Anderson v. Deere & Co. 852 F2d 1244, 1247 (10
Cir. 1988) (amendment held to relate back to
manufacturer which knew or should have
known, before requisite time expired, that it
rather than its subsidiaries was the proper
defendant and would have been named but for
the mistake); Itel Capital Corp. v. Cups Coal Co.,
707 F.2d 1253, 1258 (11th Cir. 1983) (notice of
action against defendant corporation imputed
to owner of corporation who was deemed to
have notice by reason of his identity of interests with original defendant). See also West v.
Buchanan, 981 P.2d 1065, 1066 (Alaska 1999)
(plaintiff’s amendment substituting driver of
vehicle was allowed to relate back to original
filing based on “close relationship” between
newly added defendant and original defendant, owner of vehicle, who was named as
defendant by mistake; driver knew or should
have known she was proper defendant).
¶15 Plaintiffs correctly argue that although
we have not spoken on the issue of imputed
notice in the context of §2015(C), our Courts of
Appeals have. In Ford v. West, 2003 OK CIV
APP 94, 78 P.3d 1245, a case with facts quite
similar to those before us here, a motorist filed
a negligence action concerning an automobile
collision and mistakenly named the driver’s
father as the defendant. That plaintiff’s
attempt to add the driver/son as defendant by
amendment after the statute had expired, was
unsuccessful as the trial court upheld the driver’s arguments that the relation back provisions of §2015 did not apply because notice to
the father could not be imputed to the son,
and that plaintiff should have discovered his
identity before the statute ran.
¶16 The appellate court rejected those arguments and reversed the judgment, finding the
requirements of the statute were satisfied as
the action arose out of the same occurrence, the
driver/son received notice of that claim within
the requisite time, and he knew or should have
known that but for the misnaming of his father
the original claim would have been brought
against him and he showed no evidence of
prejudice by relation back. See also Bray v.
Thomas Energy Systems, Inc. 1995 OK CIV APP
146, 909 P.2d 1191(recognizing principle of
imputing notice by reason of identity of interest although relation back denied because mistake of identity requirement not met); Tisdale v.
ITW Ramset/Red Head, 2003 OK CIV APP 83, 77
P.3d 609 (doctrine of imputed notice recognized in case decided on issue of mistake of
2010
identity where issue of material fact was found
to exist as to receipt of notice by defendant
company and role of its lawyers in withholding information sought by plaintiffs regarding
the identity of defendants).
¶17 Defendants contend Nusbaum v. Knobbe,
2001 OK CIV APP 52, 23 P.3d 302, supports
their contention that notice should not be
imputed to Lacey through her parents, but it
does not. The court there did discuss the doctrine of imputing notice based on an identity of
interest and stated the facts before it were
insufficient to do so, where the owner of vehicle was wrongfully named as the driver
although he and the prospective defendant/
driver had a familial relationship and shared
legal representation. That discussion is dicta,
however, as the court held §2015(C) was not
applicable to the action which, it found, had
not been commenced within time under 12
O.S. §100. Id. at 306, n. 4.
¶18 Representation of the newly added
defendant by the same attorney representing
the existing defendant has been recognized as
an identity of interest sufficient to impute
notice to the added defendant on the rationale
that the attorney is likely to tell the prospective
party that he or she may be joined in the
action. See 3 Moore’s Federal Practice,
§ 15.19.[3][c], (3d ed.), See also Barkins v. International Inns, Inc., 825 F.2d 905, 907 (5th Cir.
1987) (court recognized judicial acceptance of
imputed notice through shared attorney and
held that notice to attorney shared with separate defendant corporation constituted notice
to added defendant corporation within prior
Rule 15(c) requisite time period); Singletary v.
Pennsylvania Dep’t of Corrections, 255 F.3d 186,
195-200 (3d Cir.2001) (endorsing shared attorney as basis of imputing Rule 15(c)(3), but
finding attorney did not begin to represent
new party until time for service of summons
had passed and shared representation therefore could not be basis for notice of action to
new party within requisite time period).
¶19 Identity of interest has also been found
sufficient to allow imputation of notice where
the original and added defendants have the
same insurer. See e.g., Denver v. Forbes, 26 F.R.D.
614 (E.D. Pa. 1960) (notice imputed to added
defendant through shared insurer where plaintiff mistakenly named the driver’s mother, the
owner of the vehicle, as the defendant, and
insurance company had been aware of the true
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Vol. 77 — No. 19 — 7/15/2006
facts and no harm would occur by substituting
daughter for her mother); See also Phillips v.
Gieringer, 108 P.3d 889 (Alaska 2005) (in action
where plaintiff mistakenly named driver’s
father, owner of vehicle, as defendant/driver,
rather than son the actual driver, court held a
rebuttable presumption exists that notice may
be imputed from an insurer to insured in
absence of conflicting interests, and court
found presumption satisfied and imputed
notice to driver/son of both institution of the
suit and knowledge of mistake of identity from
insurance company he shared with his father);
Siemon v. Rumfelt, 825 P.2d 896 (Alaska 1992)
(notice imputed to minor son/driver and
mother from insurance company and policy
they both shared with father who had deliberately been named sole defendant, but relation
back denied due to failure to satisfy requirement of mistake of identity).
¶20 We find that Lacey and her parents have
a sufficient identity of interest that notice
should be, and is, imputed to her and that relation back of the amendment will not prejudice
her in maintaining a defense on the merits.
Lacey was a minor child living at home with
her parents and she knew she was driving
their vehicle when the accident occurred.
Additionally, she and her parents were insured
by the same carrier, which knew about the
accident from the outset, and they, and their
interests, were represented by the same attorney. In that regard, we also note defendants’
attorney candidly concedes in the brief that he
would expect to receive the assignment of
Lacey Bane’s defense from the carrier if the
case against her should proceed.
¶21 The defendants’ conclusory allegations
that Lacey will be prejudiced in her defense of
this action by relation back of the amendments
are not persuasive. Section 2015(C) is concerned only with prejudice to a party’s defense
of the action on the merits. See Nelson v. County of Allegheny, 60 F.3d 1010, 1014-15 (3d Cir.
1995) (“The prejudice to which [ Rule15(c)(3) ]
refers is that suffered by one who, for lack of
timely notice that a suit has been instituted,
must set about assembling evidence and constructing a defense when the case is already
stale.”) (citation omitted). Under the facts of
this case we find it much more reasonable to
believe Lacey will suffer no prejudice in the
preparation and presentation of her defense on
the merits of this action.
Vol. 77 — No. 19 — 7/15/2006
¶22 We find the third requirement is also met
here, as Lacey knew or should have known
within the requisite time period that she was
intended to be the defendant and would have
been so named if plaintiffs had not mistakenly
named her parents as the drivers. We are not
persuaded by defendants’ arguments that
plaintiffs’ omission of Lacey as a named defendant was not a “mistake of identity” within the
meaning of §2015(C), but was instead either
negligent or a litigation tactic. They assert that
plaintiffs could have avoided the erroneous
statement by exercising due diligence and
obtaining the correct information from the
accident report.
¶23 In the plaintiffs’ brief, their attorney stated he believes the mistake likely resulted from
the fact that the print on the accident report
was quite small and very hard to read. In any
event, it was a mistake. Plaintiffs argue the
misstatement was known to be a mistake by
Lacey, who knew it was she, not her parents,
operating the vehicle when the accident
occurred, and it was also known by her parents and by their insurer and by their lawyer.
We find this of the sort of mistake contemplated under the relation back doctrine.
¶24 Federal Rule 15(c)(3) includes mistakes
which result from negligence. Professor Moore
explains that “the proper consideration . . . is
whether the added defendant knew or should
have known that the action would have been
brought against him or her but for the plaintiff’s mistake, not whether the plaintiff’s mistake was reasonable. Every mistake involves
an element of negligence, carelessness, or fault.
Rule 15 (c)(3) encompasses both mistakes that
were easily avoidable and those that were
serendipitous.” 3 Moore’s Federal Practice 3d
ed.¶15.19 [3][ d] at 15-92.
¶25 A mistake under Rule 15(c)(3) exists
where a plaintiff intended to sue the proper
party but misidentified or misnamed him or
her in the original pleading and the new party
knew within time that he or she would have
been sued but for the plaintiff’s mistake. See
e.g. Korn v. Royal Caribbean Cruise Line, Inc., 724
F.2d 1397 ( 9th Cir. 1984) (plaintiff intended to
sue ship owner for personal injuries and but
named ship’s marketing corporation by mistake); VKK Corp. v. National Football League, 244
F.3d 114, 128 (2d Cir. 2001) (plaintiff intended
to bring action against party with whom it had
negotiated but mistakenly named a party that
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2011
had not existed at the time in question) G.F. Co.
v. Pan Ocean Shipping Co. 23 F.3d 1498, 1503
(9th Cir. 1994) (plaintiff intended to sue company that owned ship but mistakenly named
the agent believing it was the owner); Loveall v.
Employer Health Services, Inc., 196 F.R.D. 399,
404-404 (D. Kan.2000) (plaintiff intended to
bring product liability action against medical
supply company but mistakenly named another company as the seller).
¶26 In Leonard v. Parry, 219 F.3d 25 (1st Cir.
2000), there was reversed a district court order
dismissing plaintiff’s amendment to a complaint in a personal injury action resulting
from an automobile accident which attempted
to substitute the driver of the vehicle for the
vehicle owner’s husband who had been
named as the driver by mistake. The district
court found the amendment did not come
within the protections of Federal Rule 15(c)(3)
and could not relate back to the inception of
the action because plaintiff had not exercised
reasonable diligence in determining the identity of the proper defendant before the statute
expired. Finding the district court had misconstrued the meaning of the Rule, the U.S. Court
of Appeals concluded it was plain from the
face of the complaint, which erroneously stated the owner’s husband was driving, that
plaintiff made a mistake concerning the identity of the proper party and it was a mistake covered by the Rule. Noting the failure to name
the actual driver resulted from plaintiff’s counsel’s “blunder,” the Court stated that “[v]irtually by definition, every mistake involves an
element of negligence, carelessness, or fault and the language of Rule 15(c)(3) does not distinguish among types of mistakes concerning
identity.” Id. at 28-29. See also Anderson, 852
F.2d 1244 (10 Cir. 1988) (reversing district
court’s holding that Rule 15(c)(3)’s protection
may be defeated by plaintiff’s subsequent dilatory behavior in serving newly added defendant with amended complaint).
¶27 Defendants refer to Bloesser v. Office
Depot, Inc., 158 F.R.D. 168 (D.Kan. 1994), in
support of their position that relation back of
the amendment should be denied. In that case,
the court found plaintiff deliberately chose to
wait until the statute of limitations had expired
before attempting to discover defendant’s
identity, and due to his ignorance of his legal
rights and his failure to seek timely legal
advice, plaintiff made an error in legal judgment regarding the length of the applicable
2012
statute of limitations. Under those facts, the
court found the delay was not excusable neglect, but a tactical mistake rather than a “mistake concerning the identity” of the proper
party under Rule 15(c)(3).
¶28 Defendants are correct that when a
plaintiff is aware of all possible defendants and
makes a tactical decision to name a particular
defendant rather than another, only to learn
after the statute expires that he has made an
error in judgment about liability, it is not a mistake of identity within the rule. See,e.g. RendellSperanza v. Nassim, 107 F.3d 913, 917-19 (D.C.
Cir. 1997); Cornwell v. Robinson, 23 F.3d 694, 705
(2d Cir. 1994). But this is not such a case. Nor is
this a case where plaintiff files an action
against an unknown party because he lacked
knowledge of the identity of the defendant,
and thereafter fails to identify the defendant
until the after the expiration of the limitation
period. See, e.g., Garrett v. Fleming, 362 F.3d 692,
696-97 (10th Cir. 1996); Henry v. F.D.I.C., 168
F.R.D. 55, 58-60 (D.Kan. 1996).
¶ 29 Defendants’ reliance on authorities such
as Bray, 909 P.2d 1191, Dotson, 894 P.2d 1109,
and Watson v. Unipress, Inc., 733 F.2d 1386 (10
Cir. 1984), is also misplaced. In Bray, plaintiff
was not aware of the identity of the parties he
later attempted to add as defendants, and the
facts did not show that they knew or should
have known the action would have been
brought against them but for a mistake concerning identity of the proper party. Accordingly, the court held that, as in Bloesser, the
plaintiff had failed to demonstrate his omission was anything more than a tactical error.
Bray, 909 P.2d. at 1194-1195.
¶30 Dotson and Watson concerned plaintiffs
who had initially named John Doe defendants
in their actions and attempted to add named
defendants by amendment after the applicable
limitation period had expired. In Watson, the
Tenth Circuit disallowed plaintiff’s effort,
holding that naming a John Doe defendant in
the caption of a complaint does not toll the
statute of limitations and plaintiff’s attempt to
substitute a party for the original John Doe
defendant amounted to adding a party which
requires meeting all the conditions of Rule
15(c) before relation back may be allowed. In
Dotson, plaintiff had known of the existence of
the parties she sought to add by amendment,
but had not known their role in facts leading to
her claim. She knew their identity, but lacked
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Vol. 77 — No. 19 — 7/15/2006
knowledge of their acts and omissions, and she
did not discover their culpability until the
statute had expired. Accordingly, we held
plaintiff could not substitute the parties for the
John Doe defendants in her original petition as
the amendment did not come within
§2015(C)(3) and did not relate back. A John
Doe defendant is accurately identified by the
plaintiff as unknown, and plaintiff’s failure to
name a John Doe defendant results from a lack
of knowledge, which is not a “mistake concerning identity of the proper party.” Only a
known party can be mistakenly identified by a
plaintiff. Garrett, 362 F.3d 692, 696-97; Henry, 68
F.R.D. 55, 59-60.
stituting a defendant encompassed by Rule 15(c). 6A Wright, Miller &
Kane, Federal Practice & Procedure, Civil 2d§1498, at 126.
¶31 In the instant case, plaintiffs intended to
sue the driver of the other automobile; they
were aware of her identity and her role in their
action, they just mistakenly misnamed her in
the petition. There is no indication in this case
that plaintiffs were making a strategic or tactical choice.
ON APPEAL FROM THE DISTRICT
COURT OF TULSA COUNTY,
THE HONORABLE P. THOMAS
THORNBRUGH, PRESIDING
¶32 The district court correctly interpreted
and applied 12 O.S. 2001§2015(C) to the facts of
the case, and its order properly allowed the
addition of Lacey as a defendant to relate back
to the commencement of the action. The trial
court also properly allowed plaintiffs’ amendment adding negligent entrustment as a theory
of recovery to relate back to the original petition as the claim arose from the occurrence set
forth in the original petition. Parker v. Elam,
1992 OK 32, 829 P.2d 677, 682.
¶33 The order is affirmed.
¶34 ALL JUSTICES CONCUR
1. The Oklahoma Comment to the section explains: “The
[1993]amendments to section §2015 track the 1991 amendments to Fed.
R. Civ. P. 15, which were designed to overturn the result in Schiavone v.
Fortune, 477 U.S. 21 (1986). The Schiavone case dealt with the application of a statute of limitations to a defendant who was misnamed in a
complaint. The plaintiffs in Schiavone attempted to sue the owners of
Fortune magazine, and they named the defendant “Fortune,” instead
of the correct owner, “Time, Inc.” After the statute of limitations ran,
the plaintiffs attempted to amend the complaint to name Time, Inc.,
and the United States Supreme Court held that the amendment did
not relate back under Fed.R.Civ.P. 15(c), because Time, Inc. did not
receive notice of the lawsuit until after the statute of limitations had
run.
The result in Schiavone is undesirable, because a defendant no
longer has to be served within the statute of limitations. All that is
needed under 12 O.S.1991, § 2003 is the filing of the complaint within
the statute of limitations and its service before the 180 day deadline in
12 O.S.1991, § 2004(I). The [1993] amendments to section 2015(C)
would permit the relation back of an amendment to a petition as long
as the proper defendant received notice of the lawsuit before the deadline in section 2004(I) expired. In addition, relation back would be permitted if the applicable statute of limitations (e.g., the law of another
state) is more liberal and would allow relation back of the amendment.”
2. “Changing the party” should be liberally construed by the
courts to include an amendment adding a defendant as well one sub-
Vol. 77 — No. 19 — 7/15/2006
2006 OK 58
GARY GILBERT, as Guardian for JOHN E.
GILBERT, an incapacitated person,
Appellee, v. SECURITY FINANCE
CORPORATION OF OKLAHOMA, INC.;
MAVERICK ACQUISITION
CORPORATION; MACI HOLDINGS, INC.;
SECURITY FINANCE CORPORATION OF
SPARTANBURG; SECURITY GROUP, INC.;
and CONTINENTAL HOLDING
COMPANY, Appellants.
No. 101,664, Consol. w/101,665. July 5, 2005
¶0 The plaintiff filed suit in the district court
against the defendants alleging fraud, breach
of fiduciary duty, and breach of the duty of
good faith and fair dealing, among other
claims. The jury returned a $15,000.00 plaintiff’s verdict for actual damages, and a
$1,750,000.00 verdict for punitive damages.
The district court granted the plaintiff’s applications for sanctions and for costs. The nonresident defendants contest the district court’s
exercise of jurisdiction over them and the district court’s submission of the alter-ego issue to
the jury. The resident defendants claim that 23
O.S.Supp.2002, §9.1 is unconstitutional and
that the punitive damages award violated their
due process rights. Both sets of defendants
contest the sanctions and the amount of costs
awarded by the trial court. The appeals in this
case were retained and consolidated for review
by this Court. The plaintiff filed a motion for
appeal-related sanctions.
JUDGMENT AFFIRMED IN PART,
REVERSED IN PART; ORDER AWARDING
COSTS REVERSED; ORDER AWARDING
SANCTIONS AGAINST NON-RESIDENT
DEFENDANTS REVERSED; RESIDENT
DEFENDANTS’ AMENDED PETITION IN
ERROR REGARDING SANCTIONS
DISMISSED; APPEAL-RELATED
MOTIONS FOR SANCTIONS AND TO
STRIKE DENIED; CAUSE REMANDED
WITH INSTRUCTIONS.
Fred A. Leibrock, Byrona J. Maule, Catherine
L. Campbell, Phillips McFall McCaffrey McVay
& Murrah, P.C., Oklahoma City, Oklahoma, for
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2013
Appellants Security Finance Corporation of
Oklahoma, Inc. and Maverick Acquisition Corporation.
John R. Woodard, III, Curtis J. Roberts, Belinda
E. Aguilar, Feldman, Franden, Woodard, Farris
& Boudreaux, Tulsa, Oklahoma, for Appellants
MACI Holdings, Inc., Security Finance Corporation of Spartanburg, Security Group, Inc.,
and Continental Holding Company.
David Humphreys, Luke J. Wallace, Adrienne
N. Cash, Humphreys Wallace Humphreys,
P.C., Tulsa, Oklahoma, for Appellee.
TAYLOR, J.
I. ISSUES
¶1 The principal issues before this Court are:
(1) whether the exercise of in personam jurisdiction over the non-resident defendants violates
due process, (2) whether the trial court erred in
submitting to the jury and instructing the jury
on the issue of alter-ego liability, (3) whether
title 23, section 9.1 of the Oklahoma Statutes is
unconstitutional, and (4) if not, whether the
punitive damages award complies with title
23, section 9.1 under the evidence in this case.1
We find that in personam jurisdiction over three
of the four non-resident defendants violates
due process. We also find that the trial court
did not err in submitting to the jury and
instructing it on the issue of alter-ego liability
as to the other non-resident defendant. We
hold that the provisions of title 23, section
9.1(A), (C), and (E) are facially constitutional.
We find that the punitive damages award was
excessive under title 23, section 9.1 based on
the evidence presented in this case.
II. STANDARD OF REVIEW
¶2 In personam jurisdiction is a question of
law subject to de novo review.2 The court’s jurisdiction must affirmatively appear on the
record.3 The issues of a statute’s constitutional
validity and of its construction and application
are questions of law reviewed de novo.4 We
review assigned errors in jury instructions to
consider whether the instructions in their
entirety accurately reflect the law and whether
it is reasonably evident that the jury was mislead by an erroneous instruction.5
III. THE DEFENDANTS
¶3 Security Finance Corporation of Oklahoma, Inc. (SFC-OK) and Maverick Acquisition Corporation (Maverick) (together Okla2014
homa defendants) are supervised installment
loan companies who make consumer loans of
up to $1,000.00 in Oklahoma. The Oklahoma
defendants agreed to be held liable for each
other’s acts. SFC-OK is a wholly-owned subsidiary of Finance Corporation of Spartanburg
(SFC-S), a South Carolina company. Security
Group, Inc. (SGI), is a stock holding company6
incorporated under the laws of South Carolina
and holds all of SFC-S’ stock.
¶4 Maverick is a wholly-owned subsidiary
of MACI Holdings, Inc. (MACI) which is a
wholly-owned subsidiary of Continental
Holding Company (CHC). Susan Bridges
owns all of CHC’s stock. MACI, CHC, and SGI
(holding companies), together with SFC-S, are
known as the Spartanburg defendants.7 None
of the Spartanburg defendants are licensed to
do business in Oklahoma.
¶5 SFC-S had a written “Management
Agreement” with CHC for SFC-S to supervise
Maverick’s offices. The agreement was effective during the time period relevant to this
case. The agreement gave SFC-S control of
Maverick employees including the rights to
hire, to discharge, to train, and to completely
control and direct their activities. SFC-S and
SFC-OK had a similar unwritten agreement.
IV. FACTS
¶6 Gary Gilbert (plaintiff) is the guardian
and brother of John E. Gilbert. Between 1997
and 2001, John Gilbert regularly borrowed
money from the Oklahoma defendants. During this time, John was not under a guardianship, most of this time he lived independently
in an apartment, and his only income was a
monthly social security disability check of
$500.00 to $600.00. John cannot read, acts
as though he can, and is noticeably mildly
mentally retarded.
¶7 The Oklahoma defendants make new
installment loans, renewal loans, and former
borrower loans. To increase their profits, the
Oklahoma defendants encouraged their customers to renew their loans every two months.
Renewals comprised a significant part of the
defendants’ income. The Oklahoma defendants’ policy was for employees to tell their
customers the benefits of renewing loans without telling them the costs associated with the
renewal. Then before the customer signed the
loan agreement, an employee reviewed the
loan renewal terms, including the costs and
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interest. The defendants referred to this as selling the renewal. At times a customer would
request a renewal without an employee’s “selling it.”
¶8 Sometimes the Oklahoma defendants
encouraged John to renew a loan; at other
times, John would ask to renew. The Oklahoma defendants renewed John’s loans thirtyseven times. The Oklahoma defendants continued to renew John’s loans after they knew that
he was staying at least part of the time in a
homeless shelter.
¶9 SFC-OK has about 70 branch offices in
Oklahoma; Maverick has about 30 branch
offices. Generally, the branch offices are staffed
by a manager and two assistant managers.
Supervisors are above the branch managers on
the organizational charts. A supervisor’s job
duties include: (1) overseeing seven to twelve
branch offices, (2) hiring, firing, and developing branch employees, (3) overseeing the
branch offices’ finances, assets, and overall
production, (4) visiting each of their branch
offices at least every forty-five days, (5) ensuring account gain and loan volume for their territory, and (6) ensuring compliance with company policies and procedures. When visiting
a branch office, a supervisor generally will
complete a supervision form which is used
to assure that employees follow the policy
manual.
¶10 About fifteen supervisors work in Oklahoma. At least some of the supervisors’
employment contracts are with SFC-S.
However, the Oklahoma defendants urge that
the contracts mislabel SFC-S as the employer.
Supervisors receive a percentage of the profits
generated by the branches they manage.
¶11 SFC-S provides the costs of immediate
supervision of the Oklahoma defendants by
paying for the expenses of the supervisors; of
Lisa Burroughs, the Vice-President of Operations for SFC-OK; and of other Oklahoma
defendants’ officers. Lisa Burroughs helped set
the yearly objectives for the Oklahoma defendants’ offices. SFC-S has a sign on the side of
its home office building in Spartanburg that
states “Security Finance, 500 offices to serve
you.” When the branch employees and documents refer to the “home office,” they are referring to the office in Spartanburg. One of the
supervisors admitted that SFC-OK and SFC-S
are the same company.
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¶12 SFC-S owns the policy manual used by
the Oklahoma defendants and provides training for the Oklahoma defendants’ branch
employees. In 2001, the Oklahoma defendants
paid SFC-S over three million dollars for the
expenses of supervision. SFC-S regularly
swept the money out of both SFC-OK’s and
Maverick’s accounts and commingled it in
SFC-S’ account with funds from other states.
Marshall Walsh, general counsel for the Spartanburg defendants and the Oklahoma defendants, executed an affidavit stating that several officers and employees of SFC-S work in
Oklahoma.
V. PROCEDURAL HISTORY
¶13 On February 11, 2002, the plaintiff filed
this action against the Oklahoma defendants
and later added the Spartanburg defendants.
The plaintiff asserted, among other things: (1)
fraud, deceit, and misrepresentation, (2)
breach of fiduciary duty, and (3) breach of
implied covenant of good faith and fair dealing. The jury found for the plaintiff on each of
these three claims. It awarded the plaintiff
$15,000.00 in actual damages and found that
the defendants acted intentionally and with
malice. After a separate evidentiary proceeding on the amount of punitive damages issue,
the jury awarded the plaintiff $1,750,000.00 in
punitive damages.
¶14 Below and here, the Spartanburg defendants have continually asserted that they
should be dismissed for lack of in personam
jurisdiction. The trial court consistently denied
the Spartanburg defendants’ motions as to in
personam jurisdiction. The jury returned a verdict against the Spartanburg defendants based
on alter-ego liability. On December 17, 2004,
the trial court entered judgment on the verdict.
The Oklahoma defendants and the Spartanburg defendants filed separate appeals, which
this Court consolidated.
¶15 The plaintiff filed a post-judgment
“Omnibus Application for Attorney Fees” asking that sanctions be imposed and also filed a
post-judgment application to tax costs. The
plaintiff’s pre-trial motion asking for sanctions
based on discovery abuses was still pending.
By orders dated April 7, 2005, September 27,
2005, and January 30, 2006, the trial court sanctioned both the Spartanburg defendants and
the Oklahoma defendants and awarded the
plaintiff taxable costs.
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2015
VI. IN PERSONAM JURISDICTION
¶16 We first address the trial court’s exercise
of in personam jurisdiction over the Spartanburg defendants. In personam jurisdiction, the
power of the court to render a binding judgment against a defendant,8 depends on reasonable notice and “a sufficient connection
between the defendant and the forum State to
make it fair to require defense of the action in
the forum.”9 Oklahoma’s “long-arm statute is
to extend the jurisdiction of the Oklahoma
courts to the outer limits permitted by the
Oklahoma Constitution and the Due Process
Clause of the Fourteenth Amendment to the
United States Constitution.”10 Therefore, our
inquiry is whether this state courts’ exercise of
in personam jurisdiction over the Spartanburg
defendants comports with due process. Due
process is satisfied if a non-resident defendant
has “minimum contacts” with the forum state
“such that the maintenance of the suit does not
offend ‘traditional notions of fair play and substantial justice.’”11 “The defendant’s conduct
and connection with the forum State [must be]
such that he should reasonably anticipate
being haled into court there.”12
¶17 Whether a court exercises general or specific in personam jurisdiction depends on the
nature and quality of the defendant’s contacts.13 A forum exercises “specific jurisdiction”
when “the controversy is related to or ‘arises
out of’ the defendant’s contacts with the
forum.”14 The “relationship among the defendant, the forum, and the litigation” is essential
for the exercise of specific personal jurisdiction.15 One act of substantial quality may satisfy the minimum contacts test for purposes of
specific jurisdiction.16
¶18 A forum exercises “general jurisdiction”
when the controversy is unrelated to the
defendant’s contacts with the forum.17 General
jurisdiction exists when a defendant has maintained substantial and systemic contacts with a
forum.18 Random, fortuitous, or attenuated
contacts generally do not rise to the minimum
level necessary for the exercise of general
jurisdiction.19
¶19 The plaintiff asserts that both general
and specific jurisdiction of the Spartanburg
defendants is proper from their own activities
and derivatively through the contacts of the
Oklahoma defendants under the theory of
alter-ego liability. Under this theory, personal
jurisdiction over a parent corporation may be
2016
based on the activities of its in-state subsidiary.20 In order to establish jurisdiction
under the alter-ego theory, there must be proof
of pervasive control by the parent over the
subsidiary more than what is ordinarily exercised by a parent corporation.21 A plaintiff must
overcome by “clear evidence” the presumption that a parent and subsidiary are separate
and distinct entities.22
¶20 Addressing only the holding companies,
the evidence is that they held Oklahoma defendants’ stock, they had some board of directors
in common with the Oklahoma defendants,
they filed consolidated income tax returns, and
CHC signed the management agreement with
SFC-S. There is no evidence that the holding
companies have any direct contacts with Oklahoma or that they exercise more control over
the Oklahoma defendants than that generally
exercised by a parent company.23 The record
fails to show the “minimum contacts” necessary for the exercise of in personam jurisdiction
over the holding companies,24 and the holding
companies never surrendered to the trial
court’s in personam jurisdiction. Our finding of
a lack of “minimum contacts” is based on the
specific facts in this case. On remand, the trial
court is instructed to dismiss the holding
companies as parties in this action.
¶21 The same is not true for SFC-S. The evidence shows SFC-S was physically in Oklahoma through its employees’ continuous, systemic contacts. SFC-S exercised significant
day-to-day control over the Oklahoma defendants through the supervisors. The claims in
the case are based, at least in part, on the
renewal policies set out in SFC-S’ manual
and enforced by SFC-S’ employees in Oklahoma. SFC-S’ contacts with Oklahoma surpassed the minimum necessary for the exercise
of in personam jurisdiction, both general and
specific.25
VII. ALTER-EGO LIABILITY
¶22 SFC-S argues that the trial court erred in
submitting the issue of alter-ego liability to the
jury. Corporations are distinct legal entities,
and generally one corporation will not be held
responsible for the acts of another.26 One corporation may be held liable for the acts of
another under the theory of alter-ego liability if
(1) the separate existence is a design or scheme
to perpetuate a fraud, or (2) one corporation is
merely an instrumentality or agent of the
other.27 If the Oklahoma defendants were mere
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Vol. 77 — No. 19 — 7/15/2006
instrumentalities or agents of SFC-S, the legal
distinction between these corporations may be
disregarded, and they may be treated as one
entity for purposes of liability.28
¶23 The factors for determining if one corporation may be held liable for the acts of another hinge primarily on control.29 They include:
(1) whether the dominant corporation owns or
subscribes to all the subservient corporation’s
stock, (2) whether the dominant and subservient corporations have common directors
and officers, (3) whether the dominant corporation provides financing to the subservient
corporation, (4) whether the subservient corporation is grossly undercapitalized, (5)
whether the dominant corporation pays the
salaries, expenses or losses of the subservient
corporation, (6) whether most of the subservient corporation’s business is with the
dominant corporation or the subservient corporation’s assets were conveyed from the
dominant corporation, (7) whether the dominant corporation refers to the subservient corporation as a division or department, (8)
whether the subservient corporation’s officers
or directors follow the dominant corporation’s
directions, and (9) whether the corporations
observe the legal formalities for keeping the
entities separate.30
¶24 The record is replete with evidence from
which a jury could find that SFC-S exercised
the control over the Oklahoma defendants necessary to impose derivative liability. SFC-S
owns all of SFC-OK’s stock. In addition to
Susan Bridges’ membership on the board of
directors, the companies have other directors in
common. Kent Younce, an employee of SFC-S,
is a director and vice-president of SFC-OK and
the executive director of Maverick. Ray Biggs
is the President of SFC-S and of SFC-OK. There
is evidence that SFC-OK and Maverick are
undercapitalized. There is evidence that SFC-S
holds the Oklahoma defendants out as part of
its corporation. From the evidence, a jury
could reasonably find that the Oklahoma
defendants were controlled by SFC-S, acting
through the supervisors, such that SFC-S could
be held liable for their acts. A trial court is justified in removing a question from the jury
when only one inference can be drawn from
competent evidence.31 It was not error for the
trial court to submit the alter-ego liability issue
to the jury and to instruct the jury on alter-ego
liability.
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¶25 As a collorary, SFC-S argues that the trial
court erred by refusing its proposed instruction on “sham corporations,” by failing to give
separate instructions for each of the Spartanburg defendants on alter-ego liability, and by
failing to give an instruction on undercapitalization. We find the argument to be without
merit. The court instructed: “Whether or not
one corporation is the mere instrumentality or
agent of another hinges primarily on control.
This determination must be made separately
as to each Spartanburg defendant. Separate
verdict forms are provided to assist you in this
determination.” In the instruction on alter-ego
liability, the trial court specifically listed as a
consideration whether “the subordinate corporation [was] grossly undercapitalized.” It is the
duty of the trial court to instruct on the applicable law under the evidence.32 The trial court
accurately instructed the jury on alter-ego liability. SFC-S presents no reversible error in the
instructions.
VIII. PUNITIVE DAMAGES
¶26 The issues on which the Oklahoma
defendants seek relief from the punitive damages award are: (1) the trial court erred by failing to find and by refusing to instruct that
punitive damages could not be based on legal
conduct, (2) title 23, section 9.1, the statutory
basis for the punitive damages award, is
unconstitutional under BMW of North America,
Inc. v. Gore33 and State Farm Automobile Ins. Co.
v. Campbell,34 (3) the trial court misapplied title
23, section 9.1, and (4) the trial court erred in its
instruction on punitive damages.35
¶27 Oklahoma defendants submit that
because their conduct was lawful in Oklahoma
based on the Oklahoma Uniform Consumer
Credit Code (UCCC)36 and the applicable federal law, the conduct cannot support an award
of punitive damages. Plaintiff asserted that
Oklahoma defendants did a legal act in an illegal manner. The UCCC recognizes that acts,
although otherwise legal, may be done in a
fraudulent or unconscionable manner.37 Punitive damages may be based on fraudulent or
unconscionable conduct if done intentionally
and with malice.38 Under the evidence, the trial
court did not err in refusing to instruct the jury
that punitive damages could not be based on
legal conduct.
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2017
A. Constitutional validity of title 23,
section 9.1
at the overall process — not only the jury’s discretion, but also the judicial review of the award.
¶28 The Oklahoma defendants argue that title
23, section 9.1 of the Oklahoma Statutes is
unconstitutional. Section 9.1 provides factors a
jury is to consider in awarding punitive damages
and limits the amount, among other things. Only
subsections A, C, and E of title 23, section 9.1, are
implicated here.39
¶33 In Pacific Mutual Life Ins. Co. v. Haslip,55 the
United States Supreme Court upheld a punitive
damages award against a due process attack.
The Court reviewed the states’ traditional common-law approach of assessing punitive damages. Under this approach, the jury determines
the amount of punitive damages based on the
gravity of the wrong and on a state’s need to
deter similar wrongful conduct and then the
court reviews the award for reasonableness.56
The Court found that this approach was not “so
inherently unfair so as to deny due process and
be per se unconstitutional.”57 Under Haslip for
purposes of due process, the jury need only be
“instructed to consider the gravity of the wrong
and the need to deter similar wrongful conduct.”58 The Court stated: “As long as the [jury’s]
discretion is exercised within reasonable constraints, due process is satisfied.”59 That said, the
factors to be considered under section 9.1 cannot
conflict with those articulated by the United
States Supreme Court.
¶29 The Oklahoma defendants rely on Gore40
and Campbell,41 in which the United States
Supreme Court reviewed punitive damages
awards for compliance with due process. Review
of a jury’s award under a due process analysis
and review of legislation are significantly different.42 The United States Supreme Court has not
reviewed for constitutional validity a punitive
damages statute like Oklahoma’s which
significantly bridles jury discretion.43 For the first
time, we address title 23, section 9.1’s validity
under the Fourteenth Amendment Due Process
Clause. 44
¶30 The Due Process Clause of the Fourteenth
Amendment imposes substantive and procedural limitations on punitive damages awards.45 The
Due Process Clause prohibits punitive damages
awards which are “grossly excessive” in relation
to a state’s legitimate interests in punishment
and deterrence.46 Governed by this constitutional
limitation, the states “have considerable flexibility in determining the level of punitive damages
that they will allow in different classes of cases
and in any particular case.”47
¶31 Legislation such as title 23, section 9.1 is
tested under the rational-basis standard unless it
draws upon an inherently suspect classification
or infringes upon a fundamental right.48 Legislation challenged as violating a fundamental right
must be strictly scrutinized.49 We read the Oklahoma defendants’ briefs as contending that they
have a fundamental right to have a jury instructed on factors just as they are enumerated in
Gore50 and Campbell51 and to have title 23, section
9.1 incorporate judicial review of the jury award.
¶32 The Oklahoma defendants posit that title
23, subsection 9.1(A) is unconstitutional because
the factors a jury is to consider do not track those
articulated in Gore and Campbell. Gore and Campbell teach that a court is to consider certain factors when reviewing a jury award, but they do
not require that a jury be instructed on each individual factor.52 Both Gore53 and Campbell54 looked
2018
¶34 Subsection 9.1(E)60 requires a jury to
consider the following factors, which are set out
in subsection 9.1(A), when assessing punitive
damages:
1. The seriousness of the hazard to the public arising from the defendant’s misconduct;
2. The profitability of the misconduct to the
defendant;
3. The duration of the misconduct and any
concealment of it;
4. The degree of the defendant’s awareness
of the hazard and of its excessiveness;
5. The attitude and conduct of the defendant
upon discovery of the misconduct or hazard;
6. In the case of a defendant which is a corporation or other entity, the number and
level of employees involved in causing or
concealing the misconduct; and
7. The financial condition of the defendant.61
All of these factors relate to Oklahoma’s legitimate interests in punishment and deterrence. 62
¶35 Judicial review of the size of the punitive
damages awards safeguards against excessive
verdicts.63 Gore instructed that courts reviewing a
punitive damages award must consider three
guideposts: (1) the level of reprehensibility of the
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defendant’s misconduct; (2) the ratio of punitive
damages awarded to the actual damages awarded; and (3) the comparison of the punitive damages awarded and the civil penalties authorized.64
¶36 Campbell, citing Gore, sets out seven factors
relating to reprehensibility: “the harm caused
was physical as opposed to economic; the tortious conduct evinced an indifference to or a
reckless disregard of the health or safety of others; the target of the conduct was financially vulnerable; the conduct involved repeated actions
or was an isolated incident; and the harm was
the result of intentional malice, trickery, or
deceit, or mere accident.”65 The section 9.1 factors
do not run afoul of Gore and Campbell as the
Oklahoma defendants argue: rather they are
related to the Campbell factors, to the Gore guideposts, and to the state’s interests in punishment
and deterrence.
¶37 The Oklahoma defendants argue that section 9.1(C) prohibits consideration of factors
other than those listed in subsection A and places
a cap on the award. Subsection (C) provides:
“Any award of punitive damages under this
subsection awarded in any manner other than as
required in this subsection shall be void and
reversible error.” If a statute is unambiguous and
does not conflict with another enactment,
we apply its plain language.66 By its own
unambiguous terms, this provision applies only
to subsection (C).
¶38 The procedure for an award under subsection (C) must be followed: there must be a jury
finding by “clear and convincing evidence” that
the “defendant acted intentionally and with malice towards others,” there must be a separate
jury proceeding on the punitive damages
amount, the punitive damages amount must fall
within the statutory limits, and the trial court
must reduce the jury award by any amount previously paid as a result of all punitive damages
verdicts in Oklahoma for the same conduct.67
Otherwise, the award is void.68 This provision of
subsection 9.1(C) does not affect subsection
9.1(A) factors nor does it prevent a reviewing
court from considering additional factors. We
cannot agree with Oklahoma defendants’ proposed construction of title 23, section 9.1(C).
¶39 The Oklahoma defendants argue that subsection 9.1(C)(2)(c)’s provision allowing a punitive damages award to disgorge defendant’s
financial gain directly resulting from “the conduct causing the injury to the plaintiff or other
Vol. 77 — No. 19 — 7/15/2006
persons or entities” also runs afoul of Campbell.
Under section 9.1(C)(2)(c)’s plain language, the
conduct that caused harm to others must be the
same as the conduct that harmed the plaintiff.
With the proper limiting instruction, Campbell
allows the jury to consider evidence of out-ofstate conduct in determining a defendant’s
“deliberateness and culpability” and of in-state
conduct in punishing a defendant if the conduct
has “a nexus to the specific harm suffered by the
plaintiff.”69
¶40 The Court in TXO Production Corp. v.
Alliance Resources Corp.70 stated: “It is appropriate
to consider the magnitude of the potential harm
that the defendant’s conduct would have caused
to its intended victim if the wrongful plan had
succeeded, as well as the possible harm to other
victims that might have resulted if similar future
behavior were not deterred.” If potential harm to
other victims is a consideration, then actual harm
to others is also an appropriate consideration.
This is especially true here where Oklahoma mitigates the risk of multiple punitive damages
awards by allowing a reduction by the amount
paid for other punitive damages awards in Oklahoma for the same conduct.71
¶41 The Oklahoma defendants also argue that
the $500,000.00 limit is unconstitutional because
it is not expressed as a multiplier of actual damages and, thus, allows punitive damages awards
which are excessive in relation to the actual damages award. The jury can award no more than
$500,000.00 under subsection 9.1(C)(2)(a). However, they may award less or nothing at all. It is
the reviewing court’s duty to assure that a punitive damages award is not unconstitutionally
excessive.72
¶42 The United States Supreme Court has tacitly approved of a legislatively imposed dollar
cap on punitive damages.73 In Cooper, the Court
recognized that several states have passed
statutes which place limits on punitive damages.74 Many of these limits are expressed in dollar amounts.75 In addressing these limits, the
Court recognized that “legislatures enjoy broad
discretion in authorizing and limiting permissible punitive damages awards.”76 Additionally,
the Court has refused to impose a bright-line
ratio test for punitive damages awards.77 Any
bright-line ratio imposed on a punitive damages
award is thus a matter of public policy for the
state legislatures and is not imposed by Campbell.
¶43 Lastly, the Oklahoma defendants attack
section 9.1 as unconstitutional because it fails to
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2019
provide for judicial review. First, we note that
section 9.1 is directed at the jury, not the reviewing court. Trial court review of a jury verdict is
provided by title 12, section 651(6) of the Oklahoma Statutes. Section 651(6) allows the trial
court to grant a new trial if the verdict is contrary
to law. A party aggrieved by a trial court judgment or final order has a right to appeal the decision under title 12, section 990A, and if the petition in error is properly filed, a right to appellate
review.78
¶44 We do not agree that the onus is on the
jury to apply the Due Process Clause to the punitive damages award to determine if the award
was unconstitutionally excessive. That burden
lies with the trial court and the appellate courts.79
The jury has only the burden of determining an
amount of punitive damages based on Oklahoma’s statutory requirements and interests.80
¶45 The Oklahoma defendants have failed to
articulate a right which would require heightened scrutiny of title 23, subsections 9.1(A), (C),
and (E). Therefore, we review these provisions
under the rational-basis standard. It is uncontested that section 9.1 is rationally related to
Oklahoma’s goal of authorizing punitive damages “for the sake of example and by way of
punishing” a defendant’s conduct subject to the
provisions and limitations set out in the statute.81
¶46 Title 23, section 9.1 provides far more
restraints on jury discretion than required by the
Due Process Clause of the Fourteenth Amendment. Oklahoma appellate courts review punitive damages awards to determine whether an
award is reasonably related to the defendant’s
conduct and related to the cause and extent of
the injuries.82 This Court has not hesitated to
reverse a punitive award when it is “excessive as
a result of the ‘passion, prejudice, or improper
sympathy’ of the jury.”83 Our review of a punitive damages award for excessiveness certainly
meets the review required under the Due Process
Clause.84
¶47 In summary, the Due Process Clause does
not require jury instructions state specifically the
United States Supreme Court’s reprehensibility
factors for assessing punitive damages.85 The
Court has on more than one occasion approved
the method of assessing punitive damages
wherein the jury is “instructed to consider the
gravity of the wrong and the need to deter similar wrongful conduct.”86 Pursuant to Oklahoma’s
statutory mandate,87 juries in Oklahoma, including the jury in this case, are given much more
2020
guidance in awarding punitive damages than
required by due process. After the jury makes its
punitive damages award, it falls to the court to
determine if the award is “grossly excessive” as
it relates to Oklahoma’s interest in punishing
misconduct and deterring similar misconduct.88
Accordingly, we hold that the provisions of title
23, section 9.1(A), (C), and (E) are facially valid
under the Due Process Clause of the Fourteenth
Amendment to the United States Constitution.89
B. Punitive damages award
¶48 Before examining the punitive damages
award for constitutional infirmity, we must
determine whether it conforms to title 23, section
9.1.90 In addition to delineating factors the jury
must consider in assessing a punitive damages
award,91 section 9.1 creates three categories of
punitive damages awards based on a defendant’s culpability.92 At issue here is the intermediate category, Category II.
¶49 Category II procedures utilize a two stage
process.93 If a jury finds a defendant liable on the
underlying tort, then it must find clear-and-convincing evidence that “[t]he defendant has acted
intentionally and with malice towards others” or
that “[a]n insurer has intentionally and with malice breached its duty to deal fairly and act in
good faith with its insured.”94 After an award of
actual damages, the jury, in a separate proceeding, may award punitive damages in an amount
not to exceed the greatest of:
a. Five Hundred
($500,000.00),
Thousand
Dollars
b. twice the amount of actual damages
awarded, or
c. the increased financial benefit derived by
the defendant or insurer as a direct result of
the conduct causing the injury to the plaintiff
and other persons or entities.95
The statute requires the trial court to reduce an
award made under subparagraph c by other
awards previously paid as a result of punitive
damage verdicts entered in an Oklahoma court
for the same conduct.96
¶50 In this case, the actual damages awarded
were $15,000.00, making $30,000.00 the maximum award under subsection 9.1(C)(2)(b).
Although the plaintiff presented evidence that
the Oklahoma defendants serviced other customers who received public assistance, including
social security disability benefits, he failed to
present any evidence that any of these customers
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had vulnerabilities similar to those of John
Gilbert. Therefore, the maximum punitive damages award under subsection (C)(2)(c) is the
financial benefit derived by the Oklahoma
defendants “as a direct result of the conduct
causing” John’s injury only. The evidence
showed that John received $4,319.43 in cash from
the Oklahoma defendants and made payments
totaling $6,970.00. Therefore, the maximum
punitive damages award under subsection
(C)(2)(c) is $2,650.57, the financial benefit that the
Oklahoma defendants could have received from
their loans to John Gilbert. Thus under title 23,
section 9.1(C)(2) and the evidence, the amount of
the punitive damages award cannot exceed
$500,000.00.
¶51 The Oklahoma defendants attack the
punitive damages instruction. Under title 23, section 9.1(C)(2) and Oklahoma Uniform Jury
Instruction number 5.9,97 the jury has three
options for calculating the limit on the amount of
the punitive damages award: (1) $500,000.00, (2)
twice the actual damages, or (3) the amount the
defendants financially benefitted as a direct
result of their conduct. The trial court instructed
the jury on only two of the options:
In no event should the punitive damages
exceed the greater of: $500,000.00 or the
increased financial benefit derived by the
Oklahoma defendants as a direct result of
the conduct causing the injury to the plaintiff, John Gilbert and other persons.
¶52 The procedure should have been to follow
the uniform instruction and instruct the jury on
all three options. In this case, the trial court
instructed the jury on only the first and third
options. The instruction given the jury misstated
the law under the evidence and, in view of the
$1,750,000.00 verdict, it appears the jury was
misled to believe that the financial benefit to the
Oklahoma defendants was more than the
$2,650.57 proven at trial and more than the
$500,000.00 limit applicable here. We find that
the erroneous instruction constituted reversible
error.
¶53 Because the punitive damages award of
$1,750,000.00 is inconsistent with title 23, section
9.1(C) under the evidence in this case and the
instruction was erroneous, the punitive damages
award is reversed. The amount of punitive damages is a question of fact for the jury;98 the
$1,750,000.00 award of punitive damages is void
and reversible error;99 and, thus, the issue of the
amount of punitive damages is remanded for
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proceedings consistent with this opinion. We
need not address whether the $1,750,000.00
punitive damages award is unconstitutionally
excessive until a jury awards punitive damages
under a proper instruction. Having addressed
the principal issues, we consider the remaining
issues.
IX. SANCTIONS
A. Motion to dismiss Oklahoma defendants’
amended petition in error regarding sanctions
¶54 After judgment was entered on December
17, 2004, the plaintiff filed its omnibus application for attorney fees on January 11, 2005, asking
that he be awarded attorney fees as a sanction.
The application for sanctions was based on
defendants’ discovery abuses and on their assertion of frivolous defenses in bad faith. The plaintiff did not attach any documentation of costs or
attorney fees to his application. Instead, he asked
that the court make a ruling on his entitlement to
sanctions and that the parties be ordered to
mediation or that a special master be appointed
to hear unresolved issues.
¶55 Then on January 12, 2005, the plaintiff filed
a separate application for $40,437.69 in costs
under title 12, sections 928 and 942. On February
15, 2005, the trial court heard arguments on the
plaintiff’s application for attorney fees as sanctions and continued the issue of taxable costs. On
April 7, 2005, and without any supporting documentation as to amounts, the trial court ordered
the four Spartanburg defendants to pay
$10,000.00 each in sanctions under title 23, section 103. The Spartanburg defendants timely
filed an amended petition in error in the present
appeal attacking the trial court’s April 7, 2005
order.
¶56 On June 3, 2005, the plaintiff filed a supplement to its omnibus application addressing
issues relating to the Oklahoma defendants. On
July 29, 2005, the trial court again heard arguments on plaintiff’s pretrial motion for relief, on
plaintiff’s omnibus application for attorney fees,
and on plaintiff’s application to tax costs. On
September 27, 2005, the trial court entered an
order against the Oklahoma defendants for sanctions in the form of attorney fees in the sum of
$40,000.00 jointly and severally. The trial court
awarded post-judgment interest from the date of
the order. The trial court refused to award any
additional monetary sanction against the Spartanburg defendants.
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¶57 On October 6, 2005, the Oklahoma defendants filed an unopposed motion to amend their
petition in error to include the September 27,
2005 order. On October 18, 2005, this Court
granted the motion and ordered the amended
completion of record to be filed by November 17,
2005.
¶58 The Oklahoma defendants filed the
amended petition in error on November 7, 2005,
more than thirty days after the order from which
they were appealing was filed. The plaintiff filed
a motion to dismiss the amended petition in
error as untimely under title 12, section
990A(A),100 as well as under other rules. The
Oklahoma defendants then filed a motion asking
this Court to either accept the untimely filing of
the amended petition in error or grant leave to
withdraw the amended petition in error as prematurely filed to be re-filed on entry of a final
order.
¶59 Plaintiff’s omnibus application was an
application for sanctions: it was not seeking
reimbursement of attorney fees and costs as prevailing party. The September 27, 2005 order
determined all the issues raised by plaintiff’s
omnibus application — the imposition of sanctions and the amount. There were no remaining
issues raised by the omnibus application to be
determined. Although the taxable costs had yet
to be determined, those were raised in a separate
application, are statutory, and are unrelated to
the application for sanctions or the award imposing sanctions in the form of attorney fees. Therefore, the September 27, 2005 order was a final
order.101
¶60 Title 12, section 990A(A) requires that an
appeal from a final order must be commenced
within thirty days after it is filed. The appeal of
the September 27, 2005 order was commenced
more than thirty days after the final order was
filed. Timely filing of the petition in error commencing the appeal is jurisdictional, and “[f]ailure to file an appeal within the statutory time is
fatal.”102 This Court is without jurisdiction to
address the issues raised in the Oklahoma
defendants amended petition in error, regarding
sanctions, and it is dismissed.
B. Sanctions against the SFC-S
¶61 We review the imposition of sanctions for
abuse of discretion.103 Based on title 23, section
103, the trial court found the Spartanburg defendants asserted in bad faith both that they were
not liable for the Oklahoma defendants’ acts and
2022
that the court lacked in personam jurisdiction over
them. Having found the trial court lacked in personam jurisdiction over the holding companies,
we address the sanctions only as imposed on
SFC-S.
¶62 Title 23, section 103, allows sanctions to be
imposed against the non-prevailing party not to
exceed $10,000.00 “for reasonable costs, including attorneys fees, incurred with respect to such
claim or defense.” The imposition of sanctions
imposed pursuant to title 23, section 103
requires: (1) a claim for damages for injury to
person or personal rights, (2) adjudication of the
claim on the merits, (3) motion for reimbursement of attorney fees and costs made by the prevailing party, and (4) a judicial determination
that a non-prevailing party’s assertion of a claim
or a defense was made “in bad faith, was not
well grounded in fact, or was unwarranted by
existing law or a good faith argument for the
extension, modification, or reversal of existing
law.”104 A bad faith claim is strictly limited to a
claim made for oppressive reasons.105
¶63 As part of its judicial determination, the
trial court must re-examine the record to determine the merits of the claim or defense and
whether it fits within the fourth requirement
regardless of the rulings and judgment in the
case.106 Further, the award must be based “upon
and supported by evidence presented in an
adversary proceeding in which the facts and
computation upon which the trial court rests its
determination are set forth in the record with a
high degree of specificity.”107
¶64 It is clear from the transcript that the trial
court did not re-examine the record as required,
did not conduct an adversarial proceeding on
the amount of the award, and did not base the
amount of the award on facts and computation.
Rather the court based the decision on memory
and on the subsequent adjudication on the merits. In considering the issues of lack of in personam jurisdiction and of alter-ego liability, the trial
court treated all the Spartanburg defendants as
one entity, as did the plaintiff throughout the
proceedings in the trial court. On remand, the
trial court must vacate the order imposing sanctions on the holding companies and re-examine
the sanctions against SFC-S in light of the lack of
in personam jurisdiction over the holding companies to ensure that the defenses raised were not
done in bad faith. If the trial court finds that SFCS is still subject to sanctions under title 23, section 103, the amount of the award must be
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Vol. 77 — No. 19 — 7/15/2006
restricted to what the plaintiff incurred with
respect to SFC-S’ assertion of lack of in personam
jurisdiction over it. To the extent attorney fees
were incurred only in pursuing its claims
against the holding companies, those are not
recoverable.
X. COSTS
¶65 At a hearing held on November 30, 2005,
the trial court heard arguments on the taxable
costs and made rulings on each item. On January
30, 2006, the trial court awarded the plaintiff
$27,454.90 in costs plus post-judgment interest
from February 15, 2005, the date of the hearing
on sanctions. The defendants submit that postjudgment interest did not begin to accrue until
the written order was filed on January 30, 2006.
The defendants also contest (1) the $750.00 costs
for editing the depositions of Ray Biggs and A.
Greg Williams, (2) the $4,800.00 costs for copying
potential trial exhibits, and (3) the $1,842.95 costs
for copying “documents produced in discovery.”
We review an award of taxable costs to ensure
that they are statutorily allowed.108
¶66 Title 12, section 727(A)(2) allows postjudgment interest on costs to accrue from “the
date the judgment or order is pronounced, if
expressly stated in the written judgment or order
awarding the costs . . . or the date the judgment
or order is filed with the court clerk,” whichever
is earlier. Title 12, section 1116, upon which the
defendants rely, provides: “Every direction of a
court or judge made or entered in writing, and
not included in a judgment, is an order.” This
definition provides an order, other than a judgment, is (1) a direction made by a court or judge
or (2) a direction entered in writing. Having
reviewed the transcripts of both the February 15,
2005 and the November 30, 2005 hearings, we
find nothing in either that would fall within section 1116’s definition of an order regarding costs.
¶67 The reference in the February 15, 2005
hearing on which the plaintiff hinges his argument was a question to the defendants of
whether they agreed that the plaintiff was “entitled, as a matter of course, to [his] statutory
costs.” At this hearing, the trial court did not
address the amount of costs to which the plaintiff was entitled. In fact, the trial court continued
the issue of the amount of taxable costs. In the
November 30, 2005 hearing, the trial court ruled
on the plaintiff’s entitlement to certain costs but
did not direct the defendants to pay those costs.
Not until the January 30, 2006 written order did
the trial court actually direct the payment of
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costs. The trial court erred in directing post-judgment interest to begin accruing on February 15,
2005, rather than on January 30, 2006.
¶68 The defendants contest $750.00 of costs for
editing the video depositions, arguing that there
is no statutory basis for this cost. Taxable costs
fall into two categories: (1) costs allowed as a
matter of course and (2) litigation expenses arising in an equity suit or ancillary equity proceeding.109 The plaintiff relies on the court’s inherent
power as a basis for this award. Because this is
not an equitable suit or proceeding, the costs
here are only those allowed as a matter of course.
Costs allowed as a matter of course must be
based on statutory authority.110 The plaintiff has
not supported this award with statutory authority. The trial court erred in allowing the $750.00
of costs for editing the video depositions.
¶69 The defendants contest the $4,800.00 for
copying 48,000 pages of trial exhibits, arguing
that only 753 pages of exhibits were admitted at
trial. In his motion, the plaintiff denoted these
copies only as trial exhibits, exhibits, etc., and
made no showing, either in his motion or at the
hearing, that they were used at trial. In awarding
these costs, the trial court allowed recovery of
costs for “potential documents.” The plaintiff
failed to support this award with any citation to
authority. However, as the defendants note, title
12, section 942(4) allows the “[c]osts of papers
necessarily used at trial . . . .” Because the plaintiff failed to show that the 48,000 copies were
necessarily used at trial and failed to support the
award with any other authority, the trial court
abused its discretion by allowing the plaintiff to
recovery the entire $4,800.00 in costs. However,
we find that it was not an abuse of the trial
court’s discretion to allow recovery for four
copies of the exhibits necessarily used at trial —
one for the plaintiff, one for the defendants, one
for the witness, and one for the court.
¶70 Next we address the $1,842.95 costs for
copies of discovery documents. Plaintiff argues
that title 12, section 3237(C) allows him to recover these costs. Section 3237(C) provides: “[T]he
reasonable expense of making the property
available under Section 3234 of this title shall be
paid by the requesting party, and at the time of
taxing of cost in the case, the court may tax such
expenses as costs, or it may apportion such
expenses between the parties, or it may provide
that they are an expense of the requesting party.”
Section 3234 deals with the production of documents. By its terms section 3237(C) does not
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allow the costs of copies to be taxed as costs, only
the costs of making the documents available.
Therefore, trial court erred in allowing
the $1,842.95 costs for copies of discovery
documents.
¶71 Because the trial court erred in its order
awarding costs, the order is reversed in part. The
matter is remanded to the trial court for an evidentiary hearing on the costs of copies necessarily used at trial, particularly in light of the lack of
in personam jurisdiction over the holding companies. The trial court is then to enter an order consistent with this opinion.
XI. SANCTIONS ON APPEAL
¶72 The plaintiff asks this Court to sanction the
Spartanburg defendants111 pursuant to title 12,
section 2011. The Spartanburg defendants
moved to strike the motion. The motion for sanctions was based on the Spartanburg defendants
asserting in their reply brief that the transcripts
of two video depositions played to the jury were
not a part of the trial court record, were not designated as part of the appellate record, and are
not a part of the appellate record. Although
copies of the deposition transcripts were not
originally included in the appellate record, the
transcripts were admitted at trial and were designated.112 When the Spartanburg defendants
discovered that the transcripts had been omitted,
they sought to have them included in the appellate record. The deposition transcripts were then
made part of the appellate record and are properly before this Court. We decline to impose
appeal-related sanctions on SFC-S. The motion
to strike the sanction motion is likewise denied.
¶75 The trial court erred in ordering post-judgment interest on taxable costs to accrue from February 15, 2005, awarding the costs of editing
video depositions, allowing $4,800.00 in copying
costs for trial exhibits without a showing that
they were necessarily used at trial, and allowing
the costs of copying documents furnished pursuant to a request for production. The order
awarding costs is reversed in part, and the matter is remanded to the trial court.
¶76 The motion for appeal-related sanctions is
denied. The motion to strike the motion for sanctions is denied.
JUDGMENT AFFIRMED IN PART, REVERSED
IN PART; ORDER AWARDING COSTS
REVERSED; ORDER AWARDING SANCTIONS
AGAINST NON-RESIDENT DEFENDANTS
REVERSED;
RESIDENT
DEFENDANTS’
AMENDED PETITION IN ERROR REGARDING SANCTIONS DISMISSED; APPEALRELATED MOTIONS FOR SANCTIONS AND
TO STRIKE DENIED; CAUSE REMANDED
WITH INSTRUCTIONS.
Winchester, V.C.J., Lavender, Hargrave, Opala,
Edmondson, Taylor and Colbert, JJ., concur.
Kauger, J., concurs in result.
Watt, C.J., concurs in part; dissents in part.
XII. CONCLUSION
¶73 In conclusion, all orders and judgments
against the holding companies are void for lack
of in personam jurisdiction. SFC-S has sufficient
contacts with Oklahoma for the trial court and
this Court to exercise both general and specific
jurisdiction over it in this action. The trial court
did not err in submitting to the jury and instructing it on the issue of SFC-S’ alter-ego liability. On
remand, the trial court is instructed to dismiss
the holding companies as parties to this action.
¶74 The sections of title 23, section 9.1 which
deal with Category II punitive damages are
facially constitutional. The $1,750,000.00 punitive damages award and the jury instruction on
punitive damages did not comply with title 23,
section 9.1 under the evidence. This issue is
remanded to the trial court for further proceed2024
ings. The Oklahoma defendants’ amended petition in error appealing the award of sanctions
against it is dismissed as untimely. Because the
trial court did not follow the proper procedures
in sanctioning SFC-S under title 23, section 103,
the order is reversed and the matter remanded to
the trial court.
1. The defendants raise issues in their petitions in error and briefs
which are not supported by argument and relevant authority. Thus, these
issues are deemed abandoned. Wofford v. Eastern State Hosp., 1990 OK 77,
n.1, 795 P.2d 516, 518, n.1.
2. Conoco Inc. v. Agrico Chemical Co., 2004 OK 83, ¶ 9, 115 P.3d 829, 833.
3. Conoco Inc., 2004 OK 83, ¶ 20, 115 P.3d at 835.
4. Cooper Indus., Inc. v. Leatherman Tool Group, 532 U.S. 424, 431 (2001);
Samman v. Multiple Injury Trust Fund, 2001 OK 71, ¶ 8, 33 P.3d 302, 305.
5. Myers v. Mo. Pacific R.R. Co., 2002 OK 60, ¶ 29, 52 P.3d 1014, 1029;
Cimarron Feeders, Inc. v. Tri-County Elec. Coop, Inc., 1991 OK 104, ¶ 5, 818
P.2d 901, 902.
6. “A holding company, as the name indicates, is organized for the
purpose of owning and holding the stock of other corporations.” 5 Seymour D. Thompson & Joseph W. Thompson, Commentaries on the Law
of Corporations, §4098 (Edward F. White ed., 3rd ed. 1927).
7. The corporate structure is illustrated by the following chart:
8. Conoco Inc., 2004 OK 83, ¶ 16, 115 P.3d at 834.
9. Kulko v. Superior Court of California, 436 U.S. 84, 91 (1978).
10. Conoco Inc., 2004 OK 83 at ¶ 17, 115 P.3d at 834; 12 O.S.2001,
§2004(F).
11. Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414
(quoting International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)).
12. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980).
13. Helicopteros Nacionales, 466 U.S. at 414 n.8.
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14. Id.; Epps, 327 F.3d at 648; Rambo, 839 F.2d 1415, 1418 (10th Cir.
1988).
15. Helicopteros Nacionales, 466 U.S. at 414 (citing Shaffer v. Heitner, 433
U.S. 186, 204 (1997)).
16. Burger King v. Rudzewicz, 471 U.S. 462, 475 n.18 (1985).
17. Id. at n.9; Rambo, 839 F.2d at 1418.
18. See Helicopteros Nacionales, 466 U.S. at 415-416.
19. Burger King, 471 U.S. at 475.
20. Epps, 327 F.3d at 648-649.
21. Kelly v. Syria Shell Petroleum Development, 213 F.3d 841, 856 (5th Cir.
2000); see Purdue Research Foundation v. Sanofi-Synthelabo, S.A., 338 F.3d
773, 788 n.17 (7th Cir. 2003).
22. Kelly, 213 F.3d at 856 (quoting Dickson Marine, Inc., v. Panalpina,
Inc., 179 F.3d 331, 338 (5th Cir. 1999)).
23. The plaintiff relies on consolidated tax returns for support of his
argument that the holding companies exercised extensive control over
the Oklahoma defendants. The consolidated tax returns are allowed by
the Internal Revenue Service, see I.R.C. §§1501, 1504, and are only of minimal value to show control.
24. See Helicopteros Nacionales, 466 U.S. at 415-420.
25. See id.
26. Sautbine v. Keller, 1966 OK 209, ¶ 0, 423 P.2d 447, 449 (Syllabus 2 by
the court); Gibson Products Co., Inc. of Tulsa v. Murphy, 1940 OK 100, ¶ 36,
100 P.2d 453, 458.
27. Gibson Products Co., Inc., 1940 OK at ¶ 36, 100 P.2d at 458.
28. Oliver v. Farmers Ins. Group of Cos., 1997 OK 71, ¶ 8, 941 P.2d 985,
987.
29. Id.
30. Id.; Frazier v. Bryan Mem’l Hosp. Auth., 1989 OK 73, ¶ 17, 775 P.2d
281, 288.
31. Badillo v. Mid Century Ins. Co., 2005 OK 48, ¶ 55, 121 P.3d 1080,
1102.
32. Cimarron Feeders, 1991 OK 104, at ¶ 16, 818 P.2d at 903.
33. 517 U.S. 559 (1996).
34. 538 U.S. 408 (2003).
35. We reject plaintiff’s argument that the Oklahoma defendants
invited a large punitive damages award by telling the jury in closing
argument in the actual damages stage that it would have some discretion
in determining the amount of punitive damages.
36. 14A O.S.2001, §§1-101 to 9-101.
37. 14A O.S.2001, §6-111(1).
38. 23 O.S.Supp.2002, §9.1.
39. We need not address the constitutionality of all subsections of section 9.1 because 23 O.S.Supp.2002, §9.1 (F) provides the provisions are
severable.
40. 517 U.S. at 559.
41. 538 U.S. at 408.
42. TXO Prod. Corp. v. Alliance Res. Corp., 509 U.S. 443, 456 (1993).
43. The United States Supreme Court most recently addressed punitive damages, including the process for reviewing them, in Pacific Mut.
Life Ins. Co. v. Haslip, 499 U.S.1 (1991); TXO, 509 U.S. at 443; Honda Motor
Co., v. Oberg, 512 U.S. 415 (1994); Gore, 517 U.S. at 559; Cooper Indus., 532
U.S. at 424; Campbell, 538 U.S. 408 (2003).
44. In Haslip, 499 U.S. at 1, the United States Supreme Court
addressed Alabama’s procedures for awarding and reviewing a punitive
damages award. After Haslip was decided, this Court in Rodebush v. Okla.
Nursing Homes, LTD, 1993 OK 160, 867 P.2d 1241, and the Tenth Circuit
Court of Appeals in Capstick v. Allstate Ins. Co., 998 F.2d 810 (10th Cir.
1993), upheld 23 O.S.1991, §9 against a due process challenge. Section 9,
the predecessor to section 9.1, placed fewer limits on a jury’s discretion
than does section 9.1.
45. Campbell, 538 U.S. at 416.
46. Gore, 517 U.S. at 568.47. Id.
48. City of New Orleans v. Dukes, 427 U.S. 297, 303 (1976).
49. Reno v. Flores, 507 U.S. 292, 301-302 (1993).
50. 517 U.S. at 576-577.51. 538 U.S. at 419.
52. Campbell, 538 U.S. at 419 (“We have instructed courts to determine
the reprehensibility of a defendant by considering the following factors.”).
53. 517 U.S. at 559.
54. 538 U.S. at 408.
55. 499 U.S. 1.
56. Id. at 15.
57. Id. at 17.
58. Id. at 15.
59. Id. at 20.
60. 23 O.S.Supp.2002, §9.1(E) provides: “In determining the amount,
if any, of punitive damages to be awarded under either subsection B, C or
D of this section, the jury shall make the award based upon the factors set
forth in subsection A of this section.”
Vol. 77 — No. 19 — 7/15/2006
61. 23 O.S.Supp.2002, §9.1(A).
62. See Gore, 517 U.S. at 568.
63. Honda Motor Co., 512 U.S. at 421.
64. Id. at 575; Campbell, 538 U.S. at 418.
65. Campbell, 538 U.S. at 419.
66. George E. Failing Co. Watkins, 2000 OK 76, ¶ 7, 14 P.3d 52, 56.
67. 23 O.S.Supp.2002, §9.1(C).
68. 23 O.S.Supp.2002, §9.1(C).
69. Campbell, 538 U.S. at 422-423.
70. 509 U.S. at 460.
71. 23 O.S.Supp.2002, §9.1(C); Campbell, 538 U.S. at 423.
72. Campbell, 538 U.S. at 418.
73. Cooper, 532 U.S. at 433.
74. Id.
75. See Gore, 517 U.S. 615-616 (Ginsburg, J., dissenting).
76. Cooper, 532 U.S. at 433.
77. Campbell, 538 U.S. at 425.
78. 12 O.S.2001, §952; 20 O.S.2001, §§30.1, 3001.1; see Honda Motor Co.,
512 U.S. at 426.
79. See Cooper, 532 U.S. at 433-436; Rodebush, 1993 OK 160 at ¶ 36, 867
P.2d at 1251 (upholding 23 O.S.2001, §9 against a constitutional attack).
80. Cooper, 532 U.S. at 433.
81. In fashioning title 23, section 9.1, the Oklahoma Legislature adopted many of the safeguards and guidelines suggested in Justice O’Connor’s dissent in Haslip, 499 U.S. at 51, 58 (O’Connor, J., dissenting), such
as bifurcated proceedings. Title 23, section 9.1 provides a defendant with
clear notice of “the conduct that will subject him to punishment [and] of
the severity of the penalty that a State may impose.” Campbell, 538 U.S. at
417.
82. Rodebush, 1993 OK 160 at ¶ 36, 867 P.2d at 1251.
83. Id. (quoting Chandler v. Denton, 1987 OK 38, ¶ 29, 741 P.2d 855, 867868).
84. See Haslip, 499 U.S. at 15, 17.
85. Id. at 17,20.
86. Id. at 15.
87. 23 O.S.Supp.2002, §9.1.
88. Cooper, 532 U.S. 436; Gore, 517 U.S. at 116.
89. The due process issue has been analyzed based on federal constitutional guarantees. Nevertheless, it has long been recognized that the
due process protections encompassed within the Oklahoma Constitution
and its federal counterpart are coextensive. Barzellone v. Presley, 2005 OK
86, ¶ 15, 126 P.3d 588, 593; Presley v. Bd. of County Comm’rs, 1999 OK 45, ¶
8, 981 P.2d 309, 312; see Michigan v. Long, 463 U.S. 1032.
90. State ex rel. Fent v. State ex rel. Okla. Water Res. Bd., 2003 OK 29, ¶
12, 66 P.3d 432, 439.
91. Id. §9.1(A), (E).
92. Id. §9.1(B)-(D).
93. Id. §9.1(C).
94. Id. §9.1(C)(1)-(2).
95. Id. §9.1(C).
96. Id.
97. Oklahoma Uniform Jury Instruction number 5.9 provides, in part:
In no event should the punitive damages exceed the greater of . . .
$500,000.00, or twice the amount of actual damages you have previously awarded, or the increased financial benefit derived by the
defendant as a direct result of the conduct causing the injury to the
plaintiff and other persons or entities.
98. See Sides v. John Cordes, Inc., 1999 OK 36, ¶ 18, 981 P.2d 301, 308.
99. 23 O.S.Supp.2002, §9.1(C); see supra text at ¶ 38. Section 9.1(C) provides in part:
Any award of punitive damages under this subsection awarded in
any manner other than as required in this subsection shall be void
and reversible error.
Under this provision, which the Legislature added in 2002, 2002 Okla.
Sess. Laws, p. 1999, c. 462, §2, a punitive damages award which is awarded in a manner inconsistent with title 23, section 9.1(C) is no longer subject to remittitur but must be remanded for a new trial. This provision
does not prohibit the remittitur of a punitive damages award which has
been properly awarded under section 9.1(C) but found to be constitutionally excessive.
100. Title 12, section 990A provides, in part:
A. An appeal to the Supreme Court of Oklahoma, if taken, must be
commenced by filing a petition in error with the Clerk of the
Supreme Court of Oklahoma within thirty (30) days from the date
a judgment, decree, or appealable order prepared in conformance
with Section 696.3 of this tile is filed with the clerk of the trial court.
101. See Hammonds v. Osteopathic Hosp. Founders Ass’n, 1996 OK 54, ¶
6, 917 P.2d 6, 8 (prejudgment order imposing sanctions on non-party “is
appealable as final if it conclusively determines the issue of sanctionability
and sets the amount that stands imposed.”); Stubblefield v. Gen. Motors
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2025
Acceptance Corp., 1980 OK 164, ¶ 14, 619 P.2d 620, 623-624 (There may be
more than one final, appealable order even though there is but one judgment.).
102. Stites v. Duit Construction Co., 1995 OK 69, ¶ 25, 903 P.2d 293, 301;
see 12 O.S.2001, §990A(A).
103. Broadwater v. Courtney, 1991 OK 39, ¶ 6, 809 P.2d 1310, 1312.
104. 23 O.S.2001, §103.
105. Beard v. Richards, 1991 OK 117, ¶ 14, 820 P.2d 812, 816.
106. Id. ¶ 15, 820 P.2d at 816.
107. Paynes v. Dewitt 1999 OK 93, ¶ 18, 995 P.2d 1088, 1096 (addressing an attorney fee award as a sanction pursuant to 12 O.S.2001, §3237).
108. Ashby v. Harris, 1996 OK 70, ¶ 7, 918 P.2d 744, 747.
109. Fleet v. Sanguine, LTD., 1993 OK 76, ¶ 20, 854 P.2d 892, 902.
110. See Ashby, 1996 OK 70, ¶ 7, 918 P.2d at 747.
111. Having found that the court lacks in personam jurisdiction over
the holding companies, we are not treating the motion for appeal-related
sanctions to include them.
112. The Spartanburg defendants in fact designated the entire trial
record and exhibits for inclusion in the record on appeal. When Mr.
Williams’ deposition transcript was offered into evidence, the trial court
stated: “That will be part of the record of — of course, it has the objections
in it and also will be the record of what was played to the jury.” After Mr.
Biggs’ deposition transcript was offered into evidence, the judge responded: “Okay. Give it to [the court reporter].”
WATT, C.J., concurring in part and dissenting
in part:
¶1 I agree with the majority’s position on all
issues other than its decision to remand for a
new trial on the amount of the punitive damages. Rather than doing so, I would affirm the
award subject to a remittitur to $500,000.00.1
1.See, Buzzard v. Farmers Ins. Co., Inc., 1991 OK 127, 824 P.2d 1105.
2006 OK 59
CAROL SAINT, Plaintiff/Petitioner, v. DATA
EXCHANGE, INC., Defendant/Respondent.
No. 102,084. July 11, 2006
CERTIFIED QUESTION OF LAW FROM THE
UNITED STATES DISTRICT COURT FOR
THE NORTHERN DISTRICT OF
OKLAHOMA
¶0 The United States District Court for the
Northern District of Oklahoma, certified one
question of Oklahoma law under the Revised
Uniform Certification of Question of Law Act, 20
O.S. 2001 §§1601, et seq. The Federal Court asks:
Is there either an implied statutory remedy
or a common-law Burk tort remedy for state
age discrimination claims arising under the
operation of the Oklahoma Constitution,
Art. 5 §46 and the provisions of the Oklahoma Anti-discrimination Act, 25 O.S.
§§1101, et seq. and §1901?
We answer in the affirmative.
CERTIFIED QUESTION ANSWERED.
Mark Hammons, Kelly J. Walker, HAMMONS,
GOWENS & ASSOCIATES, INC., Oklahoma
City, Oklahoma, for Plaintiff/Petitioner.
2026
Paul G. Summars, Oklahoma City, Oklahoma for
Defendant/Respondent.
HARGRAVE, J.:
¶1 The United States District Court of the
Northern District of Oklahoma, certified one
question of Oklahoma law under the Revised
Uniform Certification of Question of Law Act, 20
O.S. 2001 §§1601, et seq. The Federal Court asks:
Is there either an implied statutory remedy
or a common-law Burk tort remedy for state
age discrimination claims arising under the
operation of the Oklahoma Constitution,
Art. 5 §46 and the provisions of the Oklahoma Anti-discrimination Act, 25 O.S.
§§1101, et seq. and §1901?
We answer in the affirmative.
¶2 Carol Saint, age 58, brought a claim of age
discrimination in Federal Court asserting that
she was terminated from her job because of her
age. She has asserted claims under both the federal age discrimination statute (ADEA 29 U.S.C.
§§621 et seq.) and Oklahoma’s public policy
against age discrimination as embodied by the
Oklahoma Anti-discrimination Act, 25 O.S.
§§1101, et seq. The Defendant moved to dismiss
the state law claims. Ms. Saint asserts that the
Oklahoma Statute creates a unified class of persons who are the victims of handicap, race, gender or age discrimination therefore requiring
equal remedies for all of those persons under
Art. 5 §46.1 Ms. Saint asserts that the remedy provided for victims of age discrimination under the
state and federal statutes is less generous than
the remedy provided for victims of handicap discrimination under 25 O.S. 19012 and therefore
the ADEA does not provide a Constitutionally
adequate remedy. The Defendant asserts that the
ADEA remedy is adequate and therefore, that no
state remedy should be implied.
¶3 This self-same question has previously been
addressed by this Court in the areas of race discrimination and sexual harassment. In both of
those cases we found that a common-law Burk
tort remedy was available to plaintiff as such
violations create dichotomous division of members of the same class, which offends the §46
mandated norms of uniformity, symmetry and
evenhanded treatment.
¶4 In Collier v. Insignia Financial Group, 1999
OK 49, ¶ 14, 981 P.2d 321, 326, this Court found
that victims of sexual harassment were members
of the same class as victims of handicap discrimination. The majority in that case further held
that:
The Oklahoma Bar Journal
Vol. 77 — No. 19 — 7/15/2006
The Burk tort gives the discharged victim a
private cause of action for quid pro quo sexual harassment comparable to that statutorily accorded to victims of handicap discrimination. Hence, our adopted construction of
the Act — i.e., that it does not provide the
exclusive remedy for quid pro quo sexual
harassment, which culminates in wrongful
discharge — voids the pitfalls of according
asymmetrical remedies to members of a
single class of employment-discrimination
victims.
In summarizing its holding, this Court further
stated that if the Oklahoma Anti-Discrimination
Act had afforded the victims of sexual harassment the same remedies as given to handicapdiscrimination victims, the Burk tort would not
be available. 1999 OK 49, ¶ 15, 981 P.2d 321, 326,
327.
¶5 In Tate v. Browning-Ferris, Inc., 1992 OK 72,
833 P.2d 1218, this Court addressed the same
issue in a race discrimination case. This Court
held:
When a statute is susceptible to more than
one construction, it must be given that interpretation which frees it from constitutional
doubt rather than one that would make it
fraught with fundamental-law infirmities.
The Act here in contest does not provide a
private right of action to a person aggrieved
by racially discriminatory practices if the
Commission does not resolve the claim to his
satisfaction. In contrast, it does afford a private right of action for discrimination based
on handicap. Were we today to construe the
statute as having established the sole remedy for racially discriminatory practices, we
would create a dichotomous division of discrimination remedies contrary to Art. 5 §46
of the Oklahoma Constitution. There would
be a more generous remedy for victims of
handicap discrimination than for those who
suffered from racial discrimination. For
remedial purpose, discrimination victims
comprise a single class. Our Constitution
absolutely interdicts the passage of special
law that would sanction disparate remedies
Vol. 77 — No. 19 — 7/15/2006
for those who complain of employment discrimination.
1992 OK 72, ¶18, 833 P.2d 1218, 1229-1230. (Footnotes omitted)
¶6 Age-discrimination victims are part of the
employment discrimination class, and as such
must be afforded the same rights as the other
members of the class. Therefore we find that
there is a Burk tort remedy for those who allege
employment age discrimination.
CERTIFIED QUESTION ANSWERED.
¶7 CONCUR: WATT, C.J., WINCHESTER,
V.C.J., LAVENDER, HARGRAVE, OPALA,
EDMONDSON, TAYLOR, COLBERT, JJ.
¶8 CONCUR IN RESULT: KAUGER, J.
1. The terms of Art. 5 §46, Okl. Const. provide in pertinent part:
1. “The Legislature shall not, except as otherwise provided in this
Constitution, pass any local or special law authorizing:
******
Regulating the practice or jurisdiction of . . . in judicial proceedings or
inquiry before the courts . . . or other tribunals . . . ." [Emphasis supplied.]
2. 25 O.S. 1901 provides:
A. If a charge for discrimination in employment on the basis of
handicap is filed under the provisions of Sections 1101 through
1801 of Title 25 of the Oklahoma Statutes and is not resolved to the
satisfaction of the charging party within one hundred eighty (180)
days from the filing of such charge, the charging party may commence an action for redress against any person who is alleged to
have discriminated against the charging party and against any person named as respondent in the charge, such action to be commenced in the district court of this state for the county in which the
unlawful employment practice is alleged to have been committed.
B. Either party in any such action shall be entitled to a jury trial of
any facts in dispute in the action.
C. If it is determined in such action that the defendant or defendants in such action have discriminated against the charging party
on the basis of handicap as charged in the petition, the aggrieved
party shall be entitled to nominal or actual damages. Actual damages shall include, but are not limited to, reinstatement or hiring,
with or without back pay, or any other legal or equitable relief as
the court deems appropriate. Back pay liability shall not accrue
from a date more than two (2) years prior to the filing of the charge
with the Oklahoma Human Rights Commission. Interim earnings
or amounts earnable with reasonable diligence by the person discriminated against shall operate to reduce the back pay otherwise
allowable. No order of the court shall require the hiring or reinstatement or promotion of an individual as an employee, or the
payment to him of any back pay, if such individual was refused
employment or advancement or was suspended or discharged for
legitimate reasons other than discrimination on account of handicap.
D. In any action or proceeding under this section the court shall
allow a prevailing party a reasonable attorneys fee.
E. No action shall be maintainable in district court as herein provided more than two (2) years after a timely filing of a charge with
the Oklahoma Human Rights Commission.
The Oklahoma Bar Journal
2027
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The Oklahoma Bar Journal
Law & Business
Vol. 77 — No. 19 — 7/15/2006
Court of Criminal Appeals Opinions
2006 OK CR 27
KENNETH EUGENE HOGAN, Appellant, v.
STATE OF OKLAHOMA, Appellee.
No. D-2003-610. June 28, 2006
ORDER GRANTING REHEARING BUT
DENYING RECALL OF THE MANDATE
¶1 Appellant filed a Petition for Rehearing and
Motion to Recall the Mandate in the abovestyled appeal on June 5, 2006. He requests reconsideration of this Court’s decision affirming his
conviction for first-degree murder and sentence
of death. See Hogan v. State, 2006 OK CR 19,
___P.3d___(May 15, 2006).
¶2 A Petition for Rehearing shall not be filed
as a matter of course, but only for two reasons:
diced by counsel’s failure to object to the court’s
instructions and he cannot prevail. Strickland v.
Washington, 466 U.S. 668, 687, 104 S. Ct. 2052,
2064, 80 L. Ed. 2d 674 (1984); Davis v. State, 2005
OK CR 21, ¶ 7, 123 P.3d 243, 246. Nor do we find
that the prosecutor’s argument concerning intent
to kill and how it can be formed erroneously
instructed the jury on the issue of intent to kill.
Wackerly v. State, 2000 OK CR 15, ¶¶ 29-30, 12
P.3d 1, 12.
¶6 The Petition for Rehearing is GRANTED.
The Motion to Recall the Mandate is, however,
DENIED.
¶7 IT IS SO ORDERED.
¶8 WITNESS OUR HANDS AND THE SEAL
OF THIS COURT this 28th day of June, 2006.
1. Some question decisive of the case and
duly submitted by the attorney of record
has been overlooked by the Court, or
/s/ Charles S. Chapel
CHARLES S. CHAPEL,
Presiding Judge
2. The decision is in conflict with an
express statute or controlling decision to
which the attention of this Court was not
called either in the brief or in oral argument.
/s/ Gary L. Lumpkin
GARY L. LUMPKIN,
Vice Presiding Judge
/s/ Charles A. Johnson
CHARLES A. JOHNSON, Judge
Rule 3.14, Rules of the Oklahoma Court of Criminal
Appeals, Title 22, Ch.18, App. (2006).
¶3 In seeking rehearing, Appellant claims that
this Court incorrectly decided the claims raised
in Propositions I, II, III and VIII and the decision
is in conflict with controlling authority. We disagree. The decision rendered in this case disposed of the issues raised relying upon appropriate authority and we deny rehearing on this
basis.
¶4 Appellant also claims questions decisive of
the case that were duly submitted were overlooked by the Court. The opinion does not
address Appellant’s claim that trial counsel was
ineffective for failing to challenge the jury
instructions submitting first degree manslaughter as a lesser included offense or the prosecutor’s allegedly improper statements to the jury
on intent to kill. Neither of these issues, however, is decisive and requires relief.
¶5 We held the jury instructions, when read as
a whole, fairly and accurately stated the applicable law. Hogan v. State, 2006 OK CR 19, ¶ 44.
Hogan, thus, cannot show that he was prejuVol. 77 — No. 19 — 7/15/2006
/s/ Arlene Johnson
ARLENE JOHNSON, Judge
/s/ David Lewis
David Lewis, Judge
ATTEST:
/s/ Michael Richie
Clerk
2006 OK CR 28
MICHAEL WAYNE HOWELL, Appellant, v.
STATE OF OKLAHOMA, Appellee.
No. PCD-2003-268. June 29, 2006
OPINION DENYING SECOND
APPLICATION FOR POST CONVICTION
RELIEF AFTER REMAND FOR JURY
DETERMINATION ON ISSUE OF MENTAL
RETARDATION
C. JOHNSON, JUDGE:
¶1 Petitioner, Michael Wayne Howell, was
convicted by a jury in Oklahoma County District
The Oklahoma Bar Journal
2029
Court, Case No. CRF 1987-6784, of First Degree
Murder, committed with malice aforethought, in
violation of 21 O.S.1981, § 701.7. The jury set
punishment at death after finding the existence
of three (3) aggravating circumstances.1 On
appeal, we affirmed Howell’s conviction but
vacated his sentence of death and remanded the
case for resentencing. Howell v. State, 1994 OK CR
62, ¶ 39, 882 P.2d 1086, 1095. A second jury sentencing was held and the jury again returned
with a sentence of death after finding the existence of the same three (3) aggravating circumstances found in the original sentencing. On
appeal from the resentencing, we affirmed Howell’s sentence of death. Howell v. State, 1998 OK
CR 53, 967 P.2d 1221. We denied his original
application for post-conviction relief in Howell v.
State, PC 1998-200 (Okl.Cr. December 16,
1998)(not for publication). Howell sought further
review of the outcome of his state direct appeals.
The Supreme Court of the United States denied
certiorari in Howell v. Oklahoma, 514 U.S. 1113, 115
S.Ct. 1968, 131 L.Ed.2d 858 (1995) and in Howell
v. Oklahoma, 528 U.S. 834, 120 S.Ct. 93, 145
L.Ed.2d 79 (1999).
¶2 On June 16, 2003, Howell, through counsel,
filed his Second Application for Post-Conviction
Relief, pursuant to 22 O.S.2001, § 1089. Accompanying his Application was a Motion for Evidentiary Hearing on Post-Conviction Claim,
filed pursuant to Rule 9.7(D), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18,
App. (2003). In his sole proposition of error,
Howell claimed that in light of Atkins v. Virginia,
536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335
(2002), his death sentence should be vacated and
modified to a non-capital sentence.2 Alternatively, Howell requested this Court remand the matter for an evidentiary hearing to determine
whether his mental disabilities bar his execution.
We remanded to the District Court of Oklahoma
County for an evidentiary hearing. See Order
Granting Motion for Evidentiary Hearing on
Proposition One of Second Application for PostConviction Relief, Howell v. State, PCD 2003-268
(Okl.Cr. November 18, 2003)(not for publication). After the District Court found a “triable
question of fact concerning Petitioner’s mental
retardation which must be resolved by a jury,”
we granted post-conviction relief and remanded
his case for a jury trial on his claim of mental
retardation. Howell v. State, PCD 2003-268
(Okl.Cr. May 3, 2004)(not for publication).
¶3 Howell’s jury trial on mental retardation
was held in Oklahoma County District Court,
before the Honorable Virgil C. Black, District
Judge on May 23rd – 27th, 2005. Howell waived
2030
his personal appearance at the jury trial, but was
represented by counsel prior to and throughout
the trial. The jury returned with a verdict that
Howell is not mentally retarded. The trial court
denied Howell’s motion for a new trial. The trial
court filed written findings of fact and conclusions of law. Both parties filed Supplemental
Briefs on September 23, 2005. Howell asks this
Court to reverse the jury’s verdict and order a
new trial, or in the alternative, modify his
sentence of death to a non-capital sentence due
to his mental retardation.
¶4 Though this appeal remains part of Howell’s post-conviction case, we will review errors
alleged to have occurred in this jury trial on mental retardation in the same manner as errors
raised on direct appeal from a trial on the merits.
Myers v. State, 2005 OK CR 22, ¶ 5, 130 P.3d 262.
Howell raises eleven (11) propositions of error.
1. The prosecutor exceeded the proper
bounds of opening statement and violated Lambert by indirect reference to the
facts of the capital crime in opening
statement;
2. The prosecutor’s irrelevant and improper statements about Petitioner’s character in closing argument constituted
reversible error;
3. The trial court improperly admitted
irrelevant and prejudicial law enforcement opinion concerning Petitioner’s
mental functioning without a proper
foundation;
4. The trial court improperly admitted
irrelevant and prejudicial opinion testimony from a former prosecutor/current
district judge concerning Petitioner’s
competency to testify;
5. The trial court improperly admitted
irrelevant and prejudicial letters attributed to the Petitioner;
6
Evidence of Petitioner’s use of verbal
obscenities denied Petitioner a fair trial.
7. The trial court’s instruction that mental
retardation must be “present and
known” before age 18 violated Atkins v.
Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153
L.Ed.2d 335 (2002);
8. The trial court erred by denying nonunanimous verdict forms to the jury;
9. The admission of irrelevant and prejudicial testimony about the murder investi-
The Oklahoma Bar Journal
Vol. 77 — No. 19 — 7/15/2006
gation and from Petitioner’s capital trial
violated the strict relevancy limitations
on such evidence required by Lambert v.
State and Atkins v. Virginia;
10. The allocation of the burden of proof by
a preponderance of the evidence to the
Petitioner violates the Eighth Amendment and denies an adequate procedure
for determining mental retardation;
11. The facts proven at trial showed Petitioner’s mental retardation as a matter of
constitutional law. The jury’s verdict is
contrary to the evidence and cannot
stand.
The State, in its Supplemental Brief, submits the
trial court followed proper procedure and properly instructed the jury and sufficient evidence
supported the jury’s determination that Howell
is not mentally retarded.
¶5 In Murphy v. State, 2002 OK CR 32, ¶ 13, 54
P.3d 556, 567, we adopted the following definition of mental retardation for use in determining
whether an individual is mentally retarded and
therefore ineligible for the death penalty:
A person is “mentally retarded”: (1) If he or
she functions at a significantly sub-average
intellectual level that substantially limits his
or her ability to understand and process
information, to communicate, to learn from
experience or mistakes, to engage in logical
reasoning, to control impulses, and to understand the reactions of others; (2) The mental
retardation manifested itself before the age
of eighteen (18) and (3) The mental retardation is accompanied by significant limitations in adaptive functioning in at least two
of the following skill areas: communication;
self-care; social/interpersonal skills; home
living; self-direction; academics; health and
safety; use of community resources; and
work.
It is the defendant’s burden to prove he or
she is mentally retarded by a preponderance
of the evidence at trial. Intelligence quotients
are one of the many factors that may be considered, but are not alone determinative.
However, no person shall be eligible to be
considered mentally retarded unless he or
she has an intelligence quotient of seventy or
below, as reflected by at least one scientifically recognized, scientifically approved,
and contemporary intelligent quotient test.
Id. (footnotes omitted).
Vol. 77 — No. 19 — 7/15/2006
¶6 In Lambert v. State, 2003 OK CR 11, ¶ 3, 71
P.3d 30, we stated a petitioner’s criminal conviction and sentence of death were not relevant to
the jury’s determination of mental retardation
and the jury “should not hear evidence of the
crimes for which Lambert was convicted, unless
the particular facts of the case are relevant to the issue
of mental retardation. Any such evidence should
be narrowly confined to that issue.” (emphasis
added). In his first claim of error, Howell contends the prosecutor exceeded the proper
bounds of opening statement and violated
Lambert by indirectly referring to the facts of the
capital crime in her opening statement.
¶7 The purpose of opening statement is to tell
the jury of the evidence the attorneys expect to
present during trial. Its scope is determined at
the discretion of the trial court. Hammon v. State,
1995 OK CR 33, ¶ 87, 898 P.2d 1287, 1306.
¶8 The prosecutor in this case talked about
Howell’s involvement in the criminal justice system, his incarceration and escape from a correctional facility, and his involvement in drug trafficking and in particular a drug deal gone awry.
After the prosecutor mentioned Petitioner’s
escape from a correctional facility, Petitioner’s
counsel objected that the statement was beyond
the proper scope of opening statement and the
objection was properly overruled. The prosecutor was outlining the evidence which she intended to present at trial. Next Petitioner’s counsel
objected to the prosecutor’s statement that Petitioner was part of a numbers racket. The trial
court properly overruled this objection noting
the prosecutor merely stated what Petitioner
said during his own testimony. Counsel’s last
objection came after the prosecutor referred to
Howell’s testimony that “people get killed over
dope and money.” Counsel argued the prosecutor had indirectly referred to the facts of the capital crime — someone getting killed over drugs
and money. This objection too was properly
overruled as no specific mention of Howell’s
capital crime occurred and the prosecutor’s
statement was made to explain Howell’s actions
stemming from his involvement in cocaine distribution.
¶9 The trial court, upon counsel’s objections,
properly determined the prosecutor had not
exceeded the proper scope of opening statement
and had not exceeded the boundaries enunciated
in Lambert. We find no error.
¶10 In his second claim, Howell contends the
prosecutor’s closing argument also violated
Lambert. Counsel objected only after the prosecutor argued “[t]here’s nothing illogical about
The Oklahoma Bar Journal
2031
Michael Wayne Howell. There’s a lot that’s been
illegal about Michael Wayne Howell.” The trial
court overruled the objection “under the circumstances.” The circumstances, as they appear in
the record, show that the prosecutor’s closing
argument, while referring to Howell’s prior testimony and other evidence, was designed to
illustrate how Howell’s own statements and his
writings showed he could communicate effectively and had the ability to learn from mistakes
and to think logically. This argument was not
improper. Id. It was offered in direct response to
Howell’s evidence of adaptive functioning
deficits.
¶11 As to the propriety of the remainder of the
prosecutor’s closing argument, we review for
plain error, because counsel made no further
objections. Harris v. State, 2004 OK CR 1, ¶ 64, 84
P.3d 731, 754 (failure to object to prosecutor’s
closing argument waives all but plain error). Parties have wide latitude during closing argument
to discuss the evidence and reasonable inferences from the evidence, and relief is required
only where grossly improper and unwarranted
argument affects a defendant’s rights. Hanson v.
State, 2003 OK CR 12, ¶ 13, 72 P.3d 40, 49. No
grossly improper or unwarranted arguments
appear in the record and we find no plain error
warranting relief.
¶12 During the prosecutor’s direct examination of Del City Police Officer Taylor, the prosecutor asked if, at any time during his investigation, he ever observed “anything that made you
question his level of mental functioning?”
Defense counsel objected as to lack of foundation
and his objection was overruled. Officer Taylor
responded “I — no, I did not.” Then the prosecutor asked if it “ever occur[red] to you that he
might be mentally retarded?” Officer Taylor
responded, “No.” In his third claim, Howell
argues the trial court erred when it allowed Del
City Police Officer Taylor to testify about
his observations of Howell’s level of mental
functioning.
¶13 Admission of evidence is within the trial
court’s discretion, and will be disturbed only
upon a showing of prejudice. Hooks v. State, 2005
OK CR 23, ¶ 13, 126 P.3d 636, 642. Opinion testimony of a lay witness is permissible under 12
O.S.2001, § 2701 when it is rationally based on
the perception of the witness and is helpful to the
determination of a fact in issue. Littlejohn v. State,
2004 OK CR 6, ¶ 35, 85 P.3d 287, 299, cert. denied,
543 U.S. 947, 125 S.Ct. 358, 160 L.Ed.2d 261
(2004). Officer Taylor’s opinion and perception
of Howell’s level of mental functioning was
properly admitted and the trial court did not
2032
abuse its discretion. Taylor’s testimony was
based upon his interactions with Howell and his
observations of Howell’s ability to communicate
with Officer Taylor and others. His observation
and lay opinion was relevant and helpful to the
jury’s determination of the first and third prongs
of the definition of mental retardation as set forth
in Murphy.
¶14 Howell also claims, in Proposition Four,
that the trial court improperly admitted the
opinion testimony of Judge Ray Elliott, a former
prosecutor, concerning Howell’s competency to
testify at a hearing in 1988. The prosecutor asked,
“And prior to him testifying, did his lawyers or
anyone else ever express any concerns that he
was not mentally capable of making the decision
to testify?” Defense counsel objected on relevancy grounds and his objection was overruled.
Judge Elliott responded, “No.” When asked if he
had any concerns in that regard, Judge Elliott
responded, “No, none at all.”
¶15 The trial court did not abuse its discretion
in allowing this testimony. Judge Elliott’s observation that neither Howell nor any of the attorneys involved in his 1988 criminal proceeding
objected to his decision to testify on the grounds
that he was not mentally capable of making that
decision was relevant to the jury’s determination
of both the first and third prong of the definition
of mental retardation as set forth in Murphy.
Hooks, 2005 OK CR 23, ¶ 13, 126 P.3d at 642. From
Judge Elliott’s observation that no one objected
to Howell’s ability to testify or to make the
decision to testify, a rational juror could
properly infer Howell’s counsel found him to be
a competent witness.
¶16 Next, Petitioner claims the trial court erred
when it admitted “irrelevant and prejudicial”
letters written by Howell to Mona Lisa Watson,
his co-defendant and former spouse. The admission of this evidence was within the discretion of
the trial court and we find no abuse of discretion.
Hooks, 2005 OK CR 23, ¶ 13, 126 P.3d at 642.
State’s Exhibits 9 – 12 were offered for the purpose of showing his ability to communicate, to
understand and engage in logical reasoning, to
show he understood the consequences of his
actions and had the ability to learn from his mistakes, and to show he did not have deficits in
social and interpersonal skills. The letters were
properly admitted, and the State’s reference to,
and reading from, them in closing argument was
within the proper boundaries of acceptable argument. See Hanson, 2003 OK CR 12, ¶ 13, 72 P.3d at
49 (parties have wide latitude in closing argument to discuss the evidence and reasonable
The Oklahoma Bar Journal
Vol. 77 — No. 19 — 7/15/2006
inferences from the evidence). No relief is warranted on Proposition Five.
¶17 In his sixth claim, counsel for Petitioner
argues that evidence of Petitioner’s use of profanity denied him of a fundamentally fair jury
trial on mental retardation. Counsel objected on
three different occasions, noting that Howell’s
use of the “F” word, variations thereof, and the
use of other cuss words were shocking to the
sensibilities of the jury and were extremely prejudicial. The trial court properly overruled counsel’s objections, noting the way he phrased his
answers showed his contempt for the process
and were demonstrative of his attitude and
understanding of the proceedings. Howell’s use
of profanity in his everyday language, while
unpleasant to hear, were not so prejudicial as to
render his complete statements inadmissible. 12
O.S.Supp.2003, § 2403 (relevant evidence may be
excluded if its probative value is substantially
outweighed by the danger of unfair prejudice).
The trial court did not abuse its discretion when
it allowed the prosecutor to reference Howell’s
actual words in its examination of witnesses and
closing argument and no relief is warranted on
this claim. Hooks, 2005 OK CR 23, ¶ 13, 126 P.3d
at 642.
¶18 In his seventh proposition, Howell claims
the trial court’s jury instruction that mental retardation must be “present and known” before age
eighteen violated the standards enunciated in
Atkins. In Proposition Eight, Howell claims the
trial court erred when it refused to give the jury
non-unanimous verdict forms.
¶19 We recently addressed both of these issues
in Myers, 2005 OK CR 22, ¶¶ 12-16, 130 P.3d at
268-269. There, we upheld the use of the “present
and known” language in the Oklahoma uniform
jury instruction utilized by the trial court in this
case. See OUJI-CR 2d. 4-68A (2003 Supp.). We
also found that the requirement of a unanimous
verdict did not violate Atkins, Lambert, or Murphy
and in fact was required by the Oklahoma Constitution. Okla.Const. art.II, § 19; Myers, 2005 OK
CR 22, ¶ 16, 130 P.3d at 269. The requirement of
a unanimous verdict “neither increases the likelihood that a mentally retarded person will be
executed nor does it force jurors to vote for a particular position” Id. We decline to revisit these
claims here and no relief is required on either
Proposition Seven or Proposition Eight.
¶20 In Proposition Nine, Howell argues the
admission of irrelevant and prejudicial testimony about the murder investigation and from
Petitioner’s capital trial violated the strict relevancy limitations on such evidence required by
Vol. 77 — No. 19 — 7/15/2006
Lambert v. State and Atkins v. Virginia. Howell
complains about the admission of all of Judge
Ray Elliott’s testimony, Officer Phil Taylor’s testimony, Mona Lisa Watson’s testimony, and the
admission of Howell’s own testimony by videotape from his trial in 1988. Howell also complains about the admission of the letters he wrote
to Mona Lisa Watson. We have already determined portions of Judge Elliott’s testimony and
Officer Taylor’s testimony, relating to their
observations that Howell did not appear to be
mentally retarded, were properly admitted. Similarly, we found admission of the letters written
by Howell to Watson was proper.
¶21 During the direct examination of Judge
Elliott, the prosecutor asked him to read portions
of Howell’s direct examination from a court proceeding (his jury trial) held December 5, 1988
and to identify a videotape of portions of Howell’s cross-examination from that hearing. The
videotape was then admitted as State’s Exhibit
13 and was played for the jury.3 Following
admission of the videotape and after playing it
for the jury, Judge Elliott was asked to read portions of Howell’s testimony from a court proceeding held April 22, 1996. Defense counsel
objected to Judge Elliott’s reading of Howell’s
testimony and to the admission of State’s Exhibit 13 on the grounds that the evidence was substantially more prejudicial than probative and
that the testimony and evidence indirectly suggested Howell’s commission of a capital offense.
The trial court overruled the objections. The portions of Howell’s testimony from the December
1988 hearing and from the April 1996 hearing
which were read into the record are part of this
record on appeal.4
¶22 The particular facts surrounding the capital crime for which Howell was convicted are
inadmissible under Lambert, “unless particular
facts of the case are relevant to the issue of mental
retardation.” (emphasis added) Lambert, 2003 OK
CR 11, ¶ 3, 71 P.3d at 31. That evidence, if admitted, should be “narrowly confined” to the issue
of mental retardation. Id. “If evidence bearing on
mental retardation is available by transcript
which was properly admitted in a previous proceeding,” that evidence may be presented by
transcript. Id., 2003 OK CR 11, ¶ 3, n. 9, 71 P.3d at
31, n. 9.
¶23 Our decision in Lambert clearly envisioned
that testimony from a prior proceeding might be
admissible if it constituted evidence bearing on
the issue of mental retardation. Here, the complained of evidence is Howell’s own testimony
and his own statements during an in camera hearing. We have completely reviewed the written
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2033
She showed up. She said, “How you
doing?” I said, “How you doing.” I said,
“You got the money?” She said, “Yeah, I got
the money.” She says, “I told you I had the
money before I ever told you to come over
here.”
transcripts and viewed the videotape. While
much of the evidence was admissible, certain
portions were not and were admitted in
violation of Lambert.
¶24 Howell was originally tried for the murder
of Charlene Calhoun in December of 1988. It was
his direct examination from the 1988 jury trial
which Judge Elliott read to the jury and the jury
then viewed a portion of the State’s cross-examination on State’s Exhibit 13. Counsel’s objections
to both reading the transcript and playing the
videotape were overruled. The record reflects the
prosecutor and Judge Elliott read the first forty
(40) pages of Howell’s direct examination to the
jury.5 At the point in Howell’s testimony where
the confrontation between him and the victim
Charlene Calhoun began, counsel objected
again. At that point, the prosecutor, at the judge’s
suggestion, then moved to specific areas of the
transcript so as to avoid specific references to the
capital crime.
¶25 In the first eleven (11) pages of Howell’s
testimony which was read to the jury, Howell
testified about his involvement in a cocaine drug
ring business. He testified about the operation of
the business, told how it worked on a numbers
racket, and how the drug deals took place. Howell testified about the man in charge of the drug
business, described how the drugs and money
were packaged, and how he was involved. Howell’s testimony reflected his ability to respond
directly to his counsel’s questions and his
responses were coherent and showed he could
think and respond logically. The evidence of his
involvement in the drug distribution ring, by
way of his own testimony, while evidence of
criminal conduct, was relevant to the issue of
mental retardation, because it showed his ability
to think rationally, to follow instructions, and to
be responsible for large sums of money and
drugs. See Hooks, 2005 OK CR 23, ¶ 17, 126 P.3d
at 644 (evidence of petitioner’s ability to run a
continuing criminal enterprise was relevant to
issue of mental retardation).
¶26 The remainder, consisting of the specific
drug deals leading up to his meeting with Charlene Calhoun, should not have been admitted.
The portion of his testimony which explained
how Calhoun was involved in the operation and
which described their first cocaine exchange was
of minimal relevance. But, more importantly, his
testimony about the events leading up to their
next meeting, his description of the elevated
emotions surrounding the impending drug deal,
and his description of the actual meeting with
Calhoun suggested that serious criminal conduct
followed. Howell testified
2034
I said, “Where’s it at?” She said, “Where’s
the drugs?” I said, “I’ve got the drugs.” I
said, “You owe us $20,000. I’m here to get
$20,000. When you give me the $20,000 and
what we give to you in Ft. Smith last month,
then I’ll give you another kilo.”
It was at that point, just before Howell’s testimony would have revealed how the meeting escalated into a physical confrontation and his shooting of Calhoun, that counsel objected again and
the trial court directed the prosecutor to skip to
specific areas of the transcript. The prosecutor
then skipped five (5) pages and began with this
colloquy:
Q:
Why did you take the car?
Howell: I already set the truck on fire. I knew I
had to get out of there, you know. People was looking out the windows.
Q:
Why did you burn the truck?
Howell: Because I was trying to cover up the
evidence, my fingerprints, because I
stole the truck and everything.
Q:
When you were there, what time was it
in the night, about 9:00? Do you recall?
Howell: Yeah, something around in there. I
don’t know what time it was.
Q:
Were there lights around in these apartments right here?
Howell: Were there lights around there?
Q:
Yes. Could you tell people were home?
Howell: Yeah, some of them was home, yes.
¶27 The prosecutor skipped over the questions
about what Howell did with Calhoun’s body,
moved to the next page of the transcript and
asked “If you had $60,000, why didn’t you just
unpack some of the money and buy a different
car and lay low?
Howell: Because I don’t mess with dope money.
My partners told me straight up, don’t
touch it. …
Q:
What did you think would have happened had you disturbed that money?
Howell: I wouldn’t be here today. … This is for
real, people you don’t mess with. …
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You’ll end up dead messing with people’s money.
Howell then testified he went to Florida, stayed
in a hotel, and stashed the money as instructed.
The remainder of his direct examination was not
read to the jury.
¶28 The portion of Howell’s testimony referencing his contact with Charlene Calhoun and
the events surrounding the drug deal with her,
which led to her murder, should not have been
admitted. While Howell’s specific testimony that
he shot her was not read to the jury, it was obvious from what was read that a serious crime had
occurred. His testimony surrounding his meeting with Calhoun are so closely entwined with
the actual facts of the crime, i.e. Howell shooting
her, that this portion of his testimony should not
have been admitted and was admitted in violation of Lambert.
¶29 Next we address the admission of State’s
Exhibit 13, a videotape of a portion of prosecutor
Robert Macy’s cross-examination of Howell at
the 1988 trial. The beginning of the cross-examination was relevant to the issue of mental retardation. Because Howell waived his presence at
the mental retardation jury trial, it was the jury’s
only opportunity to see Howell’s demeanor and
the way he communicated with the prosecutor.
He answered the prosecutor’s questions directly
and coherently and was not evasive. At one
point, he even attempted to joke with the
prosecutor.
¶30 Approximately six minutes into the videotaped examination, the prosecutor began to ask
questions relating to or referring to Charlene
Calhoun. These questions might have been relatively innocuous had the jury not just heard
Howell’s direct examination testimony of the
facts surrounding his meeting with Calhoun, his
burning of her truck, and his subsequent flight to
Florida. While there was no specific reference to
Howell’s murder of Charlene Calhoun, there
was enough reference to the victim and to his
conduct following her murder for the jury to
piece together what happened. A portion of this
videotape was admitted in violation of Lambert.
¶31 Finally, we address that portion of Judge
Elliott’s testimony where he read Howell’s testimony from an in camera hearing held in 1996.6 At
this in camera hearing, Howell complained about
having to attend the hearing and more importantly about his dissatisfaction with one of his
attorneys and the way the State was handling his
court proceedings. We note all references to life,
life without parole and death were not read to
the jury. From Howell’s testimony at this in camVol. 77 — No. 19 — 7/15/2006
era hearing, a rational jury could figure out that
Howell understood the system well. He was
obviously familiar with certain legal principles,
and expressed his concerns rationally and coherently. His statements were relevant to the issue of
mental retardation and showed he could understand and process information, communicate,
engage in logical reasoning and understand the
reactions of others. It suggested he does not have
significant limitations in communication,
social/interpersonal skills, self-direction, and
use of community resources. We find no error in
the trial court’s admission of that portion
of Judge Elliott’s testimony which involved
reading Howell’s April 1996 testimony.
¶32 In Atkins, the Supreme Court observed
that “[m]entally retarded defendants may be less
able to give meaningful assistance to their counsel and are typically poor witnesses, and their
demeanor may create an unwarranted impression of lack of remorse for their crimes.” Atkins,
536 U.S. at 320-321, 122 S.Ct. at 2252. Those portions of Howell’s prior testimony which were
properly admitted suggest he was able to provide meaningful assistance to his counsel, clearly understood the proceedings, and was not a
typically poor witness. His demeanor suggested
a level of understanding inconsistent with
mental retardation.
¶33 “The trial court’s decision to admit evidence will not be disturbed absent a showing of
abuse of discretion accompanied by prejudice.”
Mitchell v. State, 2005 OK CR 15, ¶ 38, 120 P.3d
1196, 1207. For evidentiary errors, the proper
inquiry is whether this Court has “grave doubts”
that the outcome of the trial would have been
materially affected had the error not occurred. Id.
The trial court abused its discretion when it
admitted a significant portion of Howell’s testimony from his trial in 1988 and allowed it to be
read to the jury and when it admitted State’s
Exhibit 13. This evidence exceeded the parameters of admissible evidence relating to the crimes
for which Howell was convicted as set forth in
Lambert, 2003 OK CR 11, ¶ 3, 71 P.3d at 31.
¶34 However, reviewing the totality of the evidence presented, we have no grave doubts that
the outcome of the trial would have been materially affected had the error not occurred. Even
though the evidence went beyond the scope of
Lambert, we conclude its admission was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17
L.Ed.2d 705 (1967). Howell did not establish, by
a preponderance of the evidence, that he is mentally retarded and even if the evidence admitted
in violation of Lambert had not been admitted,
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2035
the evidence still would not have supported a
verdict that Howell is mentally retarded.
¶35 In his tenth proposition of error, Howell
claims the allocation of the burden of proof by a
preponderance of the evidence to the petitioner
violated the Eighth Amendment and denied him
of an adequate procedure for determining mental retardation. Prior to trial, Howell requested
the trial court require the State to prove beyond
a reasonable doubt that he is not mentally
retarded. The trial court denied the motion and
thereafter instructed the jury that it was Howell’s
burden to prove mental retardation by a
preponderance of the evidence.
¶36 Howell claims the allocation of this burden to him violates Ring v. Arizona, 536 U.S. 584,
122 S.Ct. 2428, 153 L.Ed.2d 556 (2002) and
Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct.
2348, 147 L.Ed.2d 435 (2000) because mental
retardation is a factual issue which must be
determined by a jury prior to imposing the death
penalty. In Apprendi, the Supreme Court held in a
non-capital case that “[o]ther than the fact of a
prior conviction, any fact that increases the
penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and
proved beyond a reasonable doubt.” Apprendi,
530 U.S. at 490, 120 S.Ct. 2362-2363. Ring extended the holding in Apprendi to capital cases. Ring,
536 U.S. at 609, 122 S.Ct. at 2443. Howell claims
that under Ring and Apprendi, the determination
that a petitioner is not mentally retarded must be
proven by the State beyond a reasonable doubt.
¶37 The Oklahoma legislature has not conditioned an increase in a defendant’s maximum
punishment on the fact that he is not mentally
retarded; the fact a defendant is not mentally
retarded is not an aggravating circumstance
which the State must prove beyond a reasonable
doubt. 21 O.S.2001, § 701.12. Eligibility for the
death penalty is a different issue than proof of an
aggravating circumstance. Other states have
addressed similar claims and have reached the
same conclusion. See State v. Laney, 627 S.E.2d
726, 732 (S.C. 2006)(concluding in post-Atkins
cases, mental retardation is a threshold issue that
determines whether a defendant is eligible for
capital punishment at all); People v. Smith, 751
N.Y.S.2d 356, 357 (N.Y.Sup. 2002)(upholding
validity of statute requiring defendant to prove
mental retardation as a mitigating circumstance
by a preponderance of the evidence and rejecting
contention that the prosecution should have an
affirmative obligation to prove beyond a reasonable doubt the absence of any factor which
would render the defendant ineligible for the
death penalty); State v. Williams, 831 So.2d 835,
2036
860, n. 35 (La. 2002)(Atkins referred to mental
retardation as an exemption from capital punishment, “not as a fact the absence of which operates
as the ‘functional equivalent of an element of a
greater offense.’” Citations and quotations omitted.); Howell v. State, 151 S.W.3d 450, 466 (Tenn.
2004)(mental retardation is a threshold issue that
determines whether a defendant is eligible for
capital punishment at all, not a statutory aggravating circumstance the lack of which must be
proved by the State beyond a reasonable doubt);
In re Johnson, 334 F.3d 403, 405 (5th Cir. 2003)(per
curiam)(“neither Ring and Apprendi nor Atkins
render the absence of mental retardation the
functional equivalent of an element of capital
murder which the State must prove beyond a
reasonable doubt”).
¶38 We continue to hold that in a post-conviction proceeding, when this Court has remanded
for a jury determination on the factual issue of
mental retardation, a petitioner must prove mental retardation by a preponderance of the evidence. State ex.rel. Lane v. Bass, 2004 OK CR 14, ¶
8, 87 P.3d 629, 631-632; Lambert, 2003 OK CR 11,
¶ 4, 71 P.3d at 32; Myers, 2005 OK CR 22, ¶ 6, 130
P.3d at 265. Mental retardation is a complete bar
to the imposition of the death penalty; it is different from a statutory aggravating circumstance
which increases the punishment for an offense,
and we conclude that the holdings in Ring and
Apprendi, in our opinion, do not require the State
to prove the lack of mental retardation beyond a
reasonable doubt.
¶39 Further, we are not persuaded to restructure our procedure by the New Jersey Superior
Court’s holding in State v. Jimenez, 880 A.2d 468
(N.J. Super. A.D. 2005). The holding in Jimenez
that the burden of proof should be on the State to
prove a defendant’s mental retardation is based
upon that Court’s interpretation of its own State
Constitution and upon its public policy grounds.
Jimenez, 880 A.2d at 489. Accordingly, Howell’s
tenth proposition is denied.
¶40 In his last claim of error, Howell submits
the facts proven at trial showed he is mentally
retarded as a matter of constitutional law, and
the jury’s verdict is contrary to the evidence and
cannot stand.
¶41 To prove mental retardation, Howell was
required to show, by a preponderance of the evidence, 1) that he functions at a significantly subaverage intellectual level that substantially limits
his ability to understand and process information, to communicate, to learn from experience
or mistakes, to engage in logical reasoning, to
control impulses, and to understand the reac-
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Vol. 77 — No. 19 — 7/15/2006
tions of others; 2) that his mental retardation
manifested itself before the age of 18; and 3) that
he has significant limitations in adaptive functioning in at least two of the following skill areas:
communication; self-care; social/interpersonal
skills; home living; self-direction; academics;
health and safety; use of community resources;
and work. Myers, 2005 OK CR 22, ¶ 6, 130 P.3d at
266; Murphy, 2002 OK CR 32, ¶ 31, 54 P.3d at 567568. The issue of mental retardation is a factual
issue which was resolved by the jury, and we
afford the jury’s decision great deference. Myers,
id. at ¶ 7, 130 P.3d at 266-267. We will not disturb
a jury’s verdict where there is any competent evidence reasonably tending to support it. Id. When
a defendant/petitioner challenges the sufficiency of the evidence following a jury’s verdict that
he or she is not mentally retarded, this Court will
review the evidence in a light most favorable to
the State to determine if any rational trier of fact
could have reached the same conclusion. Id.
¶42 Applying this standard of review to the
present case, we find the record supports the
jury’s verdict that Howell is not mentally retarded. Howell was administered various intelligence tests over the years and his scores ranged
from 62 to 91. Howell’s scores on tests administered by his expert, Dr. Grant, ranged from 62 to
73.7 Dr. Grant also administered various academic and adaptive functioning tests and concluded
Howell’s results on those tests were consistent
with his IQ performances. He testified Howell is
mentally retarded and has significantly subaverage general intellectual functioning and significantly impaired adaptive skills.
said he never knew of a time when Michael lived
alone.
¶45 The State’s expert, Dr. John Hutson, did
not find Howell mentally retarded. Although
Howell scored a 62 on the WAIS-III administered
by Dr. Hutson, Dr. Hutson was uncomfortable
with the level of effort Howell put into the test.
He said Howell’s scores were simply not consistent with his presentation in talking and interacting. During his evaluation, Howell responded
appropriately, without difficulty, and fairly rapidly to questions. Although Dr. Hutson did not
think Howell was malingering, he thought Howell acted like he did not care and did not put
forth his best effort on the tests. Dr. Hutson
thought with his best efforts, Howell’s minimal
IQ score would be near 80. He based that opinion on his interactions and conversations with
Howell and upon his review of Howell’s conversation with Judge Freeman in 1996 when Howell
wanted to discharge one of his attorneys and to
be absent from the courtroom. In the exchange
with Judge Freeman, Dr. Hutson noted Howell
expressed concern about his injured leg and was
able to communicate objectives in multi-syllabic
words, communicate ideas, and make cogent
arguments.
¶43 Howell’s sister Brenda testified that as one
of nine children, Howell was raised in an environment of extreme poverty. Although she was
three years younger than Howell, she said she
had to help him dress from the time she was
about five years old. She said he had difficulty
with speech and she often could not understand
what he was saying. She said she taught Howell
his ABCs when he was nine.
¶46 Dr. Hutson also noted Howell’s use of
community resources where Howell requested
sentence reduction or commutation by written
correspondence which contained reasonable
arguments. He achieved a welding certification
and received a commendation for his work activities while incarcerated in Wyoming. Dr. Hutson
testified Howell’s ability to escape successfully
from incarceration showed his intellectual ability. Dr. Hutson stated he had not seen any evidence that Howell was in special education
classes while attending school as a child. Dr.
Hutson said Howell did not suffer from significant limitations in social skills (noting Howell
fared well in his social scene as a drug user and
that he was married), communication skills, selfcare, work, and use of community resources.
¶44 Howell’s brother David testified that as
children, they often had no food to eat. He said
they lived in extreme poverty. David said he and
Michael attended school in the same grade and
were in special education classes. David said
other children made fun of them and called them
retarded because they were in special education
classes. David said the other children called
them “flag boys” because they made “F”s. David
said Michael had several jobs. He worked for his
father’s garbage service picking up garbage, for
Ross Metals loading batteries onto a conveyor
belt, and for Gene Carnell as a laborer. David
¶47 The evidence presented at the trial shows
Howell did not meet even the first prong of the
definition of mental retardation. Murphy, 2002
OK CR 32, ¶ 31, 54 P.3d at 567. Although Howell
presented evidence he obtained IQ scores lower
than 70 on a couple of occasions, his effort on
those tests was questionable. The jury could
properly consider Howell’s scores above 70 and
conclude he functioned at a higher level. An IQ
score of 70 or below alone is not determinative of
mental retardation. See Pickens v. State, 2005 OK
CR 27, ¶ 14, 126 P.3d 612, 616 (other evidence of
low intellectual functioning may be considered
Vol. 77 — No. 19 — 7/15/2006
The Oklahoma Bar Journal
2037
in determining whether someone has sub-average intellectual ability which limits one’s ability
to understand and process information, to communicate, to learn from experience or mistakes,
to engage in logical reasoning, to control impulses and to understand the reactions of others).
Other evidence, besides the testing scores, suggested that Howell was not limited in his abilities to understand and process information, not
limited in communications skills, was able to
learn from experiences or mistakes, was able to
engage in logical reasoning, and was able to
understand the reactions of others.
¶48 The school records which were admitted
at trial show Howell made poor and often failing
grades; however, these records do not show he
was identified as in need of special education.
School records of his siblings Brenda and David
were admitted and their records show they were
identified as special education students. From
this evidence, the jury could have concluded his
siblings were in special education, but Howell
was not. The jury might also have found Howell’s poor academic performance during the time
he attended school was due to lack of effort,
absences, or environmental factors rather than
lack of ability.
¶49 His hand-written letters to Mona Lisa Watson show he communicated well in writing; he
could understand and process information, learn
from experience or mistakes, engage in logical
reasoning and understand the reactions of others. The fact that he wrote these letters showed
he was able to maintain a relationship with
Watson and were reflective of his social/
interpersonal skills.
¶50 The portions of Howell’s testimony from
the prior hearings which were properly admitted
also illustrate Howell does not function at a significantly sub-average level. His trial testimony
from 1988 showed he could understand and
process information, communicate, engage in
logical reasoning, and understand the reactions
of others. His exchange with Judge Freeman in
1996 about his broken leg, about discharging his
attorney, and about remaining at the court proceedings reflected his ability to understand and
process information, communicate, engage in
logical reasoning, and understand the reactions
of others.
¶51 The admissible evidence, viewed in a light
most favorable to the State, showed Howell did
not function at a significantly sub-average level
that substantially limited his abilities to understand and process information, to communicate,
to learn from experience or mistakes, to engage
2038
in logical reasoning, to control impulses, and to
understand the reactions of others. See Myers,
2005 OK CR 22, ¶ 7, 130 P.3d 262 (when a defendant challenges the sufficiency of the evidence
following a jury finding that he/she is not mentally retarded, this Court will review the evidence in a light most favorable to the State). Even
though some evidence relating to the crimes
Howell committed was improperly admitted,
we find this evidence did not contribute to the
jury’s verdict, and its admission was harmless
beyond a reasonable doubt. Chapman, 386 U.S. at
24, 87 S.Ct. at 828. Howell did not establish, by a
preponderance of the evidence, that he is mentally retarded and even if the evidence admitted
in violation of Lambert had not been admitted,
the evidence still would not have supported a
verdict that Howell is mentally retarded.
DECISION
¶52 Howell’s Second Application for PostConviction Relief in a Death Penalty Case is
DENIED and his sentence of death is
AFFIRMED. Pursuant to Rule 3.15, Rules of the
Oklahoma Court of Criminal Appeals, Title 22,
Ch.18, App. (2006), the MANDATE is
ORDERED issued upon the delivery and filing
of this decision.
APPEARANCES AT TRIAL
Bryan Dupler, Laura M. Arledge, O.I.D.S., CAP.
P.C. Division, P.O. Box 926, Norman, OK 730700926,Attorneys For Petitioner,
Pattye High, David Brockman, Asst. District
Attorneys, 320 Robert S. Kerr, Oklahoma City,
OK 73102, Attorneys For The State.
APPEARANCES ON APPEAL
Bryan Dupler, Laura M. Arledge, O.I.D.S., CAP.
P.C. Division, P.O. Box 926, Norman, OK 730700926,Attorneys For Petitioner,
W.A. Drew Edmondson, Attorney General of
Oklahoma, Jennifer Dickson, Assistant Attorney
General, 112 State Capitol Building, Oklahoma
City, OK 73105, Attorneys For State.
OPINION BY: C. JOHNSON, J.
CHAPEL, P.J. : CONCURS
LUMPKIN, V.P.J. : CONCURS IN RESULTS
A. JOHNSON, J.: CONCURS
LEWIS, J.: CONCURS
1. The jury found the following aggravating circumstances: (1) the
murder was committed for the purpose of avoiding or preventing a lawful arrest or prosecution, (2) the defendant was previously convicted of a
felony involving the use or threat of violence to the person, and (3) there
existed a probability that the defendant would commit criminal acts of
violence that would constitute a continuing threat to society.
2. In Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335
(2002), the Supreme Court held the execution of mentally retarded per-
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Vol. 77 — No. 19 — 7/15/2006
sons constitutes cruel and unusual punishment. In Murphy v. State, 2002
OK CR 32, ¶ 29, 54 P.3d 556, we recognized that in light of Atkins, mentally retarded persons are no longer eligible for the death penalty.
3. Portions of Howell’s testimony referencing his commission of capital murder were redacted from the videotape.
4. The Official Transcripts of Howell’s testimony from proceedings
held December 5, 1988 and April 22, 1996 are contained in the record on
appeal. See Order Granting Joint Motion to Supplement Post-Conviction
Record and Order Directing Clerk to File Attachments 1 and 2 in Appeal
Record, PCD 2003-268 (Okl.Cr. October 17, 2005)(not for publication).
5. The record shows the prosecutor and Judge Elliott read Howell’s
testimony from the 1988 jury trial from page 5 through page 44. (Tr. 613,
617)
6. Judge Elliott read Howell’s testimony from the April 22, 1996 transcript, pages 7 through 16.
7. Dr. Grant administered the Wechsler Adult Intelligence Scales —
3rd Edition (WAIS-3), the Stanford Binet Intelligence Scale — 4th Edition
(SB-4), and the Comprehensive Test of Non-Verbal Intelligence (CTONI).
LUMPKIN, V.P.J.: CONCUR IN RESULT
¶1 I concur in the result reached by this case
and find no error in the evidence, including the
portion of Howell’s testimony regarding Charlene Calhoun that was read to the jury, or law
that would warrant post-conviction relief. I find
the Court’s speculation the jury knew, or might
have inferred, more than the evidence shows
they were informed regarding the murder is not
supported by the evidence the jury actually
received. However, as for the procedures used
by the Court in adjudicating the issue of mental
retardation, I concur only by reason of stare decisis for the same reasons set forth in my writings
in Myers v. State, 2005 OK CR 22, 130 P.3d 262;
Lambert v. State, 2003 OK CR 11, 71 P.3d 30; and
State, ex rel. Lane v. Bass, 2004 OK CR 14, 87 P.3d
629.
2006 OK CR 29
LAURA L. DUNKLE, Appellant, v. STATE OF
OKLAHOMA, Appellee.
No. F-2004-621. July 7, 2006
OPINION
CHAPEL, PRESIDING JUDGE:
¶1 Laura L. Dunkle was tried by jury and convicted of First-Degree Murder, under 21
O.S.2001, § 701.7, in Grady County, Case No. CF2003-147. In accordance with the jury’s recommendation, the Honorable Richard G. Van Dyck
sentenced Dunkle to life imprisonment without
the possibility of parole. Dunkle appeals her conviction and her sentence.
¶2 Gary Benton White, age 46, was killed by a
single gunshot wound to the chest, shortly after
midnight on May 6, 2003, just outside the home
he was sharing with his fiancée, Laura Dunkle,
in Dibble, Oklahoma. Dunkle gave various statements at the scene and later that morning about
what happened. She consistently denied shooting White, maintaining instead that he either
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shot himself or that he was shot accidentally as
she attempted to prevent him from shooting
himself.
¶3 Shortly after midnight on the morning of
May 6, 2003, Dunkle frantically called her friend,
Lois Merrel, asking her to call 911 and get an
ambulance, because there had been an accident
and Gary had been shot. Merrel testified that
Dunkle said that she had tried 911 herself and
could not get through.1 Merrel also testified that
Dunkle referred to Gary having a gun in his
hand, a cigarette in his mouth, and carrying his
lunch pail as he headed toward his truck to go to
work, when he stumbled on the wobbly back
steps and accidentally shot himself.2 Merrell
called 911 and later went to Dunkle’s home.
¶4 Sergeant Tommy Payne, of the Grady
County Sheriff’s Office, was the first to arrive at
the scene. He testified that Dunkle flagged him
down and led him to where Gary White was laying flat on his back, with his feet toward the back
steps of the trailer home, with a single gunshot
wound to his chest. Payne could not get a pulse
and believed White was dead.3 When asked
what had happened, Dunkle stated, “He shot
himself.” When asked where the gun was, Dunkle stated, “It’s around here somewhere.” Payne
then located the gun, a Colt .45 caliber semiautomatic pistol, behind where Dunkle was
standing, near the foot of the steps of the home
and over five feet and to the left of White’s left
foot. The gun was chambered and cocked in the
firing position.4
¶5 When Payne asked Dunkle where it had
happened, she responded, “In the kitchen.”
When he entered the home, Payne noticed a .45
caliber shell casing laying in the threshold of the
doorway leading to the steps. On an island in the
kitchen, Payne discovered a small, open suitcase
containing other guns. There was no sign of a
struggle or blood inside the kitchen. At that
point Corporal John Foster, of the Grady County
Sheriff’s Office, arrived and accompanied Dunkle over to his patrol car, where he asked her
what happened.
¶6 Dunkle told Foster that she had awakened
her boyfriend, Gary White, around 10:00 p.m., so
that he could get ready for work. She stated that
she made coffee and did the dishes and that they
talked about their future plans. Dunkle stated
that she told White she was going to go lay down
in the bedroom of her two sleeping sons, which
she did. Dunkle stated that she later saw White
in the hallway outside the bedroom door, carrying the small attaché case in which he kept his
guns, and that he said something she couldn’t
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understand. Dunkle stated that she got up and
followed him into the kitchen, because she had a
feeling something bad was going to happen.
¶7 Dunkle stated that White had his gun case
open on the kitchen island and was trying to
load the gun. Dunkle stated that she said, “No,
don’t you do that,” and tried to get the gun away
from him, but he pushed her down. She stated
that as she got up, White went out the back door
and down the steps, and she saw a flash of light,
and something hit the rocks just outside the trailer when the gun went off. When asked if White
was facing her when the gun went off, Dunkle
stated that it was “pitch black” and she couldn’t
see “nothing.” At this point Foster asked Dunkle
if she would be willing to allow him to tape
record what she was telling him, because he
could not write as fast as she was speaking. Dunkle agreed to do so, and they got in Foster’s
patrol car, so they could record what was said.
¶8 The tape recording of Dunkle’s subsequent
conversation with Foster, along with a transcription of this recording, was entered into evidence
at trial. Dunkle added a number of details to her
account, including that White had to come back
into the house to get something he had forgotten
and that she couldn’t hear what he said at the
bedroom door due to noise from a fan. Dunkle
added that after being shoved down on her first
attempt to get the gun from White, she tried to
get the gun a second time, using a maneuver she
learned in a CLEET mandate class, in a struggle
with White near the back door. Dunkle stated
that she and White were both outside on the
steps when the gun went off, and that after the
flash of light, she saw White holding his sides
and coughing.5 Dunkle also talked about various
other matters, including what a wonderful guy
White was, how good he was with her children,
how respectful he was of guns, that they were to
be married on May 26, 2003, and that White was
“the happiest guy in the world.”6 Dunkle’s
demeanor varied widely during the interview.
¶9 Foster testified that by the conclusion of this
interview, he became suspicious that Dunkle
could be a suspect in the shooting, due to some
of the inconsistencies in her statements. Consequently, Foster asked Dunkle if she would be
willing to write out her statement and then read
her the printed Miranda warnings at the top of
the voluntary statement form that he provided,
listing the time as 1:15 a.m. Foster testified that
Dunkle advised him that she understood her
rights and that she was still willing to talk to
him. Dunkle then provided a written statement,
which was admitted at trial.7
2040
¶10 Around 4:00 a.m. that morning, O.S.B.I.
Special Agent Tom Linn arrived at the scene.
Linn testified regarding his observations of the
scene and the victim, including the presence of a
set of keys laying near the outstretched right arm
of White.8 He obtained permission from Dunkle
to search her home and did so. He then approach
Dunkle, who was in Undersheriff Irene Perske’s
car, and asked if she was willing to be further
interviewed by Linn and Perske about the incident, to which Dunkle agreed. Dunkle was then
taken to the OSBI office in the Grady County
Law Enforcement Center by Perske, after indicating that she preferred to ride with Perske.9
Dunkle was then interviewed extensively
by Linn, while Perske remained in the room,
beginning around 5:00 a.m.10
¶11 Linn acknowledged at trial that he did not
read Dunkle her Miranda rights.11 He testified at
length about Dunkle’s various statements during this interview, relying mainly on his report of
the interview, which he began preparing a few
days later.12 During the interview Dunkle provided more information about her relationship
with White, his job as a truck driver hauling
gravel, and her children and background. She
again summarized the events of the previous
evening and the circumstances surrounding the
shooting. Most of Dunkle’s story was consistent
with her earlier accounts, in particular, that she
thought White was going to shoot himself.13
¶12 Linn noted, however, that in Dunkle’s first
version to him, she described seeing a flash of
light after White ran down the steps, and that
she thought he was having a heart attack when
she saw him bending over at the waist. Linn
noted that Dunkle also described laying down
next to White, to talk to him while they waited
for help, and that because she was feeling nervous and stressed, she removed a cigarette and
lighter from his left front shirt pocket (near the
gunshot wound) and smoked the cigarette as she
waited.
¶13 Linn testified that he told Dunkle that her
account was inconsistent with evidence at the
scene and that she then “revised” her story. Linn
testified that Dunkle provided more details in
this second account, including the placement of
White’s hands and her hands on the gun at the
time it fired — even getting Dunkle to demonstrate the specific placement of their hands on a
wooden replica of a revolver. Linn testified that
Dunkle stated, “I don’t remember taking control
of the gun and shooting him by touching the
trigger. The gun fired by accident. It was an accident.” Linn testified that in this version Dunkle
stated that White was on the bottom step when
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the gun fired, though shortly thereafter Dunkle
provided another version of the story, in which
she was on the top step and White was on the
ground when the gun fired.
¶14 Linn testified that he continued to insist
that Dunkle’s account didn’t match the scene
and to push for more details, until Dunkle stated,
shortly before 8:00 a.m., that she would give
them more details after she asked an attorney
one question. At this point they stopped interviewing her and made a number of attempts to
contact attorneys. At 8:51 a.m., attorney Greg
McCracken returned one of their calls, and Dunkle spoke to him on the phone, after telling the
officers that they could remain in the room. During this call Dunkle told McCracken that her
boyfriend had been shot and that the officers
were threatening to charge her with first-degree
murder if she did not confess to shooting him,
even though (Dunkle insisted) she did not shoot
him.
¶15 After speaking with Dunkle, McCracken
asked to speak with Linn and inquired whether
Dunkle was under arrest, to which Linn replied,
“No.” McCracken then asked whether Dunkle
was free to leave, to which Linn responded that
she was free to leave, but they would have to
make some arrangements. When McCracken
inquired whether Dunkle was ready to go then,
Linn noted that they were “taking that under
advisement” and that they would have to consult with the district attorney’s office. McCracken informed Linn that he had instructed Dunkle
to discontinue the interview, which was done.
Shortly thereafter Dunkle was arrested and
taken into custody.
¶16 The State established that Agent Linn, the
lead investigator in the case, was a firearms
expert and particularly familiar with the type of
gun used to shoot White.14 Linn testified in great
detail about the functioning of the semi-automatic pistol found at the scene, including the
various safety mechanisms intended to prevent
accidental firings. Linn also described how
improper handling of the weapon would prevent it from cycling properly. Linn testified that
if the victim and Dunkle’s hands were positioned as Dunkle had demonstrated at the time
the gun fired, the gun would not have properly
cycled and the victim’s hands would have been
injured.15 Evidence from the scene established
that the gun found on the ground had properly
cycled and was cocked and ready to be fired
again. White’s hands were not injured.16
¶17 The medical examiner, Jeffrey Gofton, testified that the bullet that killed White traveled
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from front to back, slightly downward and to the
left, passing directly through White’s heart and
exiting his back. Based upon the stippling
around the entrance wound, Gofton testified that
the bullet was fired from an intermediate distance, which he described as a range from several millimeters up to three or four feet. Gofton
also testified that it was “extremely rare” for
someone committing suicide using a handgun to
fire the weapon from an intermediate distance,
since such suicides typically involve contact
wounds.17 Gordon Robertson, an O.S.B.I. senior
criminalist, testified that based upon his comparison of powder patterns caused by test-firing the
gun recovered at the scene with the powder pattern on White’s shirt, the gun was fired at a distance of less than 18 inches away from the shirt.18
Other evidence presented at trial will be
discussed in relevant propositions of error.
¶18 In Proposition I, Dunkle argues that the
evidence presented at trial was insufficient to
convict her of first-degree malice murder. Such
challenges are evaluated under the well-established standard laid out by the Supreme Court in
Jackson v. Virginia19 and by this Court in Spuehler
v. State.20 Under this test we must determine
“whether, after viewing the evidence in the light
most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime charged beyond a reasonable
doubt.”21 Upon reviewing the totality of the evidence presented at trial, we conclude that the
evidence was sufficient to convict Dunkle of
first-degree malice murder. The jury could have
chosen to believe Dunkle’s story that White
either shot himself or was shot accidentally, but
it did not do so. The jury was entitled to draw the
conclusion that it apparently did, i.e., that Dunkle’s inconsistent statements about how White
was shot were the result of her ineffectual
attempts to hide the truth that she intentionally
shot him herself. The evidence presented at trial,
though contested, was sufficient to support the
jury’s finding of guilt.22
¶19 In Proposition II, Dunkle argues that her
statements to OSBI Agent Tom Linn should have
been suppressed, because he did not properly
advise her of her Miranda rights.23 Linn has
acknowledged that he never informed Dunkle of
her Miranda rights. The State’s response to this
challenge is as follows: (1) Dunkle waived this
issue by failing to renew her objection to Linn’s
testimony at trial; (2) Miranda warnings were not
required, as the Linn interview was not a custodial interrogation; and (3) the earlier Miranda
warnings given by Officer Foster adequately
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apprised Dunkle of her rights regarding the
questioning by Linn.
Linn’s decision not to Mirandize her, the decision was, nevertheless, a bad one.
¶20 We agree that Dunkle waived all but plain
error regarding this claim, when she failed to
renew her objection to Linn’s testimony at trial.24
We decline to determine whether Linn’s interrogation of Dunkle was from the outset or became
at some point “custodial,” such that Miranda
warnings were required.25 Instead, we find that
the earlier Miranda warnings provided by Foster
adequately informed Dunkle of her rights
regarding her later interrogation by Linn.26
¶24 In Proposition III, Dunkle argues that the
trial court erred in allowing the State to introduce irrelevant and prejudicial character evidence at trial. We review such claims for abuse of
discretion.30 Dunkle further argues that the
State’s emphasis upon this improper evidence
constituted prosecutorial misconduct. Hence this
Court must determine whether improper evidence and prosecutorial misconduct so infected
Dunkle’s trial that it was rendered fundamentally unfair, such that the jury’s verdicts cannot be
relied upon.31
¶21 Dunkle makes the interesting argument
that she was not in custody at the time Foster
interviewed her; hence his precautionary and
“wholly gratuitous” Miranda warnings were
essentially too early, and therefore did not
“count” in regard to her later custodial interrogation by Linn. Dunkle relies upon a Supreme
Court footnote and an opinion by the West Virginia Supreme Court in support of this claim.27
The discussions in these cases are inapposite.28
¶22 Dunkle was Mirandized by one law
enforcement officer (Foster) in connection with
specific questioning about the shooting death of
her husband. Less than four hours later, another
law enforcement officer (Linn) began questioning her about the same shooting. Dunkle
remained in the presence of law enforcement
officers during this entire period. She was certainly aware that the officers were investigating
the shooting of her husband and that they were
focused upon determining how it had occurred
and what role she might have played. This situation is entirely unlike the scenarios in the cited
authorities. In addition, the fact that Dunkle
asked to speak to an attorney strongly suggests
that she was aware of her right to do so. Hence
there was no plain error.
¶23 We do not, however, condone Officer
Linn’s apparently purposeful decision not to
Mirandize Dunkle. The record does not support
the State’s claim that Linn was aware of the earlier warnings provided by Foster.29 Nor does the
State or Linn provide any legitimate rationale for
Linn’s decision not to Mirandize Dunkle, who,
under the circumstances, was clearly considered
to be a suspect in the shooting death of White.
The rights protected by Miranda and the potential importance of information garnered through
this kind of questioning are both too precious to
be jeopardized by a failure to do what is so easily done: inform the person being interrogated of
their rights under Miranda. Although Dunkle’s
Fifth Amendment rights were not violated by
2042
¶25 It is a fundamental principle of evidence
law that, with limited exceptions, “[e]vidence of
a person’s character or a trait of [her] character is
not admissible for the purpose of proving action
in conformity therewith on a particular occasion.”32 Yet much of the State’s case at trial
appears directed toward establishing that Laura
Dunkle was a bad person — a bad mother, an
unloyal fiancée, a self-absorbed manipulator,
and even, quite literally, a witch. The State
repeatedly emphasized Dunkle’s character,
seemingly, in an attempt to persuade the jury
that despite the lack of any readily apparent
motive, she was the kind of person who would
shoot her husband-to-be.33 Much of the evidence
presented by the State was not relevant to the
murder charge at issue, and most of the irrelevant evidence presented was character evidence.34
¶26 The State revealed its intent to focus upon
Dunkle’s character prior to trial. Hence defense
counsel filed a motion in limine asking the trial
court to prohibit the presentation of evidence
relating to (among other things): (1) Dunkle’s
“religious beliefs,” (2) DHS involvement with
Dunkle and her children, (3) letters sent by Dunkle to Mike Kelly from jail, and (4) recorded
phone conversations between Dunkle and Kelly
while Dunkle was in jail. The motion was
addressed at an extensive motion hearing on
April 22, 2004.
¶27 The evidence relating to Dunkle’s religious beliefs, i.e., whether or not she practiced
witchcraft, was focused upon during this hearing. Defense counsel argued that any allegation
that Dunkle was involved in witchcraft would be
totally irrelevant and inflammatory.35 The
prosecutor responded by arguing:
So it just, once again, is going to this is who
she is and this is the person that she is, and I
think we’re entitled to show whether —
she’s an unusual person, and that’s going to
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come out in the trial, and this is just one of
the unusual aspects about this defendant.
Defense counsel countered that Dunkle’s “religious practices” did not have anything to do
with whether or not she shot White, and that
even if they were somehow relevant, they should
be excluded because they were so prejudicial.
The court ruled that the State should approach
the bench before asking any questions dealing
with this issue.
¶28 Defense counsel also argued that the State
should not be allowed to introduce evidence
relating to the family’s involvement with DHS,
since most of this evidence was both irrelevant
and prejudicial. In particular, defense counsel
noted that some DHS records contained allegations that Dunkle had previously given her sons
“sleeping substances” to help them sleep. He
argued that the State should not be allowed to
present evidence suggesting that Dunkle had
drugged her children on the night of the shooting, since the testing of the children rebutted this
allegation.36 The trial court again deferred ruling
on the issue and ordered the State to approach
the bench before presenting any of this evidence,
to allow defense counsel “ample time to object to
it at that time.”
¶29 At the time of the motion hearing, the trial
court had not yet read Dunkle’s letters to Mike
Kelly from jail or heard their recorded phone
conversations. Regarding the letters, the prosecutor argued that they contain relevant information,37 and defense counsel requested that they be
redacted to eliminate irrelevant references to the
DHS case.38 Regarding the jailhouse phone calls,
the prosecutor asserted that she was unsure how
many calls would be presented, beyond those of
May 22, and July 2, 2003, because she didn’t
want to “take advantage of the Court or the jury”
or “bore them to tears.”39 Once again, the court
deferred its ruling on this evidence until trial.
¶30 At the trial the State focused upon Dunkle’s character from start to finish. For example,
the prosecutor’s opening statement began as
follows:
Ladies and Gentlemen of the Jury, we
anticipate that the State’s evidence in this
case will prove and show that the defendant,
Laura L. Dunkle, like a black widow spider,
lured Gary Benton White into her web, a
web of lies, death, and destruction.
The State’s evidence will be that Laura L.
Dunkle wanted Gary Benton White only to
assist in obtaining her children back from
Child Welfare.40 Our evidence will be that
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she is possessive, selfish, and self-centered.
The State’s evidence will be that Gary Benton White was an unknowing victim of this
defendant.
The depiction of Dunkle as a predatory spider
was repeated in the State’s closing arguments.41
And portraying this defendant as frightening
and “unusual” was a key theme of the State’s
case — even though the actual facts of this single-bullet shooting were not particularly creepy
or strange.42
¶31 The suggestion that Dunkle was involved
in witchcraft first came out during the questioning of Undersheriff Irene Perske. Without first
approaching the bench, the prosecutor asked
Perske what kind of questions “about church”
she had asked Dunkle’s younger son on the
night of the shooting, and “what was the purpose of asking that question in reference to
church?”. Defense counsel immediately objected
and argued, during the bench conference that
followed, that this was the matter addressed by
his motion in limine, that any witchcraft reference would be “highly prejudicial,” and that the
court would be “opening a can of worms” by
allowing in the testimony.
¶32 The prosecutor responded by asserting
that she really was not sure about the extent of
Perske’s knowledge regarding the witchcraft
allegation.43 The prosecutor then argued, “[E]ven
though they find it objectionable, I believe this
jury is entitled to know who this defendant is.”
The trial court noted that it was “sort of between
a rock and a hard place here, not knowing the
relevance of [Perske’s] answer yet,” but ruled
that she could answer the church question anyway. Perske then answered the pending question
about why she had asked about “church,” by
stating that prior to the second interview of the
boys, “there was something that came up, something about church, about the possibility of
witchcraft or something of that fact.”44
¶33 On cross examination defense counsel
elicited testimony from Perske that when the two
boys were asked about their mother doing
“church stuff,” they both said that she “didn’t do
any church stuff at home.” On redirect examination the prosecutor then had the following
exchange with Perske:
Q. All right. Now, going back to a question
that Mr. Smith asked you. Neither of the
boys — did either of the boys actually
say that their mother was not involved
in witchcraft?
A No, they did not.
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Q. Okay. And the question that they asked
and the answer they gave you about
church was about whether she did anything church wise at home; isn’t that correct?
A. That’s correct.
Later in the trial the prosecutor elicited testimony from Michael Priest, a friend and co-worker
of White, that his first impression of Dunkle was
that “she looked like a witch.”45 Reviewing the
trial as a whole leaves little doubt that the prosecutor intended to leave Dunkle’s jury with the
impression that she was involved in witchcraft,
whether she did this “church stuff” at home or
not.46
¶34 This Court recognizes that the State had
substantial basis for its belief that Dunkle was
involved in witchcraft. The tape recording of
Dunkle’s May 30, 2003, phone call to Mike Kelly
from jail certainly supports this conclusion.47 If
Dunkle’s jury heard the entire May 30 conversation, it would likely have been convinced that
Dunkle was involved with witchcraft. Just prior
to the playing of this recording, however,
defense counsel objected, and the court ruled
that the recording should be stopped prior to the
discussion of Dunkle’s witchcraft materials.
Hence the jury did not hear this evidence during
the trial. The actual compact disc containing the
entire discussion, however, was not altered and
was admitted into evidence as Exhibit 15A.
Unfortunately, the record does not reveal
whether the jury could have replayed the entire
recording of the May 30 conversation during its
deliberations.48 Hence this Court does not know
for sure whether or not Dunkle’s jurors received
or reviewed this evidence.
¶35 In State v. Leitner,49 the Supreme Court of
Kansas addressed a similar situation, where, in a
first-degree murder trial of a woman who shot
her ex-husband, the State cross-examined the
defendant about her involvement with Wicca
and “witchcraft.”50 The Leitner court examined
the Supreme Court’s decisions in Dawson v.
Delaware 51 and United States v. Abel,52 as well as a
Nevada Supreme Court case,53 and concluded:
[A]lthough there is no per se barrier to the
introduction of evidence of a person’s membership or participation in a religious group
or association, to be admissible such evidence should be related to the commission of
the crime charged or should be used to show
a person’s possible bias or motive.54
The Kansas Supreme Court concluded that the
State should not have been allowed to question
2044
the defendant about Wicca or witchcraft, since
“[t]he record contains no hint or innuendo that
her abstract beliefs had any connection to Leitner
killing Michael.” 55 The court rejected as “ludicrous” the State’s argument that the defendant
had opened the door to this evidence.56
¶36 The Leitner court emphasized the prejudicial nature of such evidence, noting that “the
idea of witchcraft has generated terror and contempt throughout American history” and that
“our culture associates witchcraft with Satanic
worship and other evil practices.”57 Hence the
Kansas Supreme Court concluded that “[a]ny
mention of a defendant’s involvement with
witchcraft is highly prejudicial.”58 Nevertheless,
the court affirmed Leitner’s murder conviction,
since the evidence against her was “overwhelming.”59
¶37 We find that the trial court abused its discretion in allowing the State to present evidence
suggesting that Dunkle practiced witchcraft. We
emphasize that the State has never — at trial or
on appeal — made any argument that the witchcraft evidence had any relevance whatsoever to
the first-degree murder charge against Dunkle.
Nor has the State offered any response to defense
counsel’s repeated assertions that the evidence
was inflammatory and unduly prejudicial.60 The
trial court offered no cogent reason for allowing
the witchcraft testimony, and we can find none.61
We conclude that the witchcraft evidence was
entirely irrelevant and unduly prejudicial. We
find that the trial court abused its discretion by
admitting this evidence, which violated Dunkle’s rights under the First and Fourteenth
Amendments.
¶38 The potential prejudice from the witchcraft references was substantial, even if the jury
did not hear the entire May 30 discussion.62 We
note that the evidence in this case, though certainly sufficient to support Dunkle’s conviction,
was not “overwhelming.” Dunkle had no criminal history, consistently denied shooting her husband-to-be, and had no known motive to kill
him. Only one shot was fired, and the State failed
to conclusively establish — through gun shot
residue, fingerprints, DNA, or other comparable
evidence — that Dunkle ever touched the gun or
that she was in close proximity to it when it
fired.63
¶39 We also note that the witchcraft references
were part of a larger State pattern of attacking
Dunkle’s character, by portraying her as a frightening and unlikable person. Hence we evaluate
the potential prejudice from this evidence by
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considering it in combination with the other
character evidence that is challenged on appeal.
¶40 Within Proposition III, Dunkle also challenges the State’s attempt to paint her as an unfit
mother through improper character evidence.
Yet defense counsel failed to object at trial to
much of the evidence now challenged on
appeal.64 In particular, Dunkle challenges the
State’s attempt to suggest that she drugged her
children on the night of the shooting. Despite
pretrial efforts to keep this evidence out, however, defense counsel failed to object at trial to
Undersheriff’s Perske’s testimony about how
difficult it was to wake Dunkle’s sons on the
night of the shooting and to Dick Jones’s testimony about the DHS decision to have the boys
tested, because they “were looking at the possibility of them being drugged.”65 Thus this issue
has been waived.66 Furthermore, although the
relevance of the testimony was limited, and suggesting that Dunkle drugged her sons appears
unfairly prejudicial (in light of the urinalysis
results), we likewise reject Dunkle’s claim of
prosecutorial misconduct in this regard.67
¶41 Dunkle also challenges the admission into
evidence of State’s Exhibit No. 14, which is a
long, rambling letter she wrote to Mike Kelly
from jail.68 Despite raising pretrial objections and
requesting that the letter be redacted, however,
defense counsel stated that he had “no objection” to it at trial. Hence Dunkle’s claim regarding this letter has been waived absent plain error.
Although the letter certainly contains irrelevant
and unduly prejudicial material,69 it also contains
relevant and admissible material.70 In addition,
the letter contains material helpful to Dunkle.71
We do not find plain error in its admission.72
¶42 The six different recordings of Dunkle’s
telephone calls to Mike Kelly from jail, however,
are another story. The phone recordings from
May 8, May 13, May 27, May 30, June 18, and
July 2, all of 2003, would have taken over 80 minutes to play at trial.73 And they provided powerful support for the State’s trial theme that Dunkle was a bad person and a “black widow spider.” Reviewing these recordings in sequential
order, as they were played for the jury, the listener can hear how Dunkle seeks out Kelly — who
is, at first, quite reluctant to help or get involved
in any way — and how, in a short time, she
draws him into her various schemes and gets
him to do all kinds of favors for her, including
caring for her animals, gathering and protecting
her valuables, dealing with her attorneys, communicating with her family, paying her bills,
dealing with her creditors, trying to get money
out of her bank accounts, etc. Although initially
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Kelly is uncomfortable with the idea of looking
through Dunkle’s purse,74 within a few weeks he
is driving her car, living in her home, and sleeping in her bedroom.75
¶43 Despite the obvious romance between
Dunkle and Kelly in the later phone calls, at trial
the State denied having any theory that Kelly
was involved in the shooting of White and also
renounced offering the (subsequent) Dunkle/
Kelly romance as a possible motive for the murder of White.76 Although the prosecutor
reviewed the contents of the telephone calls, at
length, during her final closing argument, she
focused almost exclusively on what the calls
revealed about Dunkle’s character. She emphasized that the phone calls revealed “the real
Laura Dunkle,” i.e., the Laura Dunkle who is
cold, calculating, self-absorbed, manipulative,
angry, and almost totally void of regret or grief
about the death of her husband-to-be.77
¶44 Although the trial court had deferred ruling on the admissibility of the jailhouse telephone recordings, the record suggests that both
defense counsel and the trial court mistakenly
believed that the court had already found this
evidence admissible. Hence although defense
counsel preserved Dunkle’s earlier-stated objection to the admissibility of this evidence, he did
not rearticulate his arguments for excluding the
recordings. And the court did not provide any
explanation for its decision to admit them.78 Nor
was there any discussion of defense counsel’s
earlier request that the recordings be redacted, to
eliminate references to irrelevant and prejudicial
information. This Court reviews the trial court’s
decision to admit these recordings for abuse of
discretion.79
¶45 On appeal, the State offers a number of
possible reasons why the recordings were relevant, which we take up in turn.80 First, the State
argues that the phone calls (along with the letter
to Kelly) “are relevant to show consciousness of
guilt by the defendant and her romantic relationship with Mr. Kelly, which is evidence of motive
by the defendant to kill her fiancée [sic].”81 Yet at
trial the State specifically denied that the
romance between Dunkle and Kelly was being
offered as evidence of “motive” and acknowledged that it did not have any evidence regarding Dunkle’s motive for shooting White. Furthermore, the State’s candor at trial regarding
this issue is supported by the record, which contains no evidence suggesting that the romance
between Dunkle and Kelly pre-dated the shooting of White. Hence the recordings were not
admissible as evidence of motive.
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¶46 The State also asserts that the telephone
recordings “were relevant to show inconsistencies in the defendant’s various versions of what
happened the night the victim was killed.” Yet
the State does not provide a single example from
the recordings of Dunkle giving an inconsistent
version of what happened on the night of the
shooting.82 And this Court’s review of the recordings reveals that, truthful or not, Dunkle was
telling Kelly the same basic story that she had
told investigators, i.e., that White was shot as she
tried to keep him from committing suicide and
that it was an “accident.” 83 Furthermore, and
perhaps surprisingly, Dunkle and Kelly barely
refer to what actually happened on the night of
the shooting. Hence the recordings were not
admissible on this basis.
¶47 The State also asserts that the recordings
were admissible to show Dunkle’s “continuing
attempt to conceal evidence by telling Mr. Kelly
to give it to her new attorney because it is a ‘big
part of the case.’” The reference occurs in the
final recorded conversation, and the “it” being
referred to is apparently the diary of Dunkle’s
younger son. The conversation indicates that
Kelly found the diary, and Dunkle tells him to
give to her attorney, because it is going to be a
“big part of the case.” It is unclear whether this
discussion even supports the State’s position
that Dunkle was attempting to conceal evidence.84 It is certainly not the best evidence of
such. Furthermore, the State indicated at trial
that it was not offering the phone conversations
as evidence of an attempt to conceal evidence.85
This Court finds that even if a small portion of
the conversation on July 2, 2003, was admissible,
this did not justify the admission of the entire
conversation or of the other separate conversations. The prosecutor’s arguments at trial suggest that the real purpose of playing this conversation was to expose the jury to the irrelevant
(and nauseating) love banter of Dunkle and
Kelly.86
¶48 Finally, the State argues that Dunkle’s
remarks, in the recording from June 18, 2003, that
she won’t do anything “stupid” again was
admissible as a statement against interest.87 This
Court agrees. This portion of their conversation
was relevant to the charge against Dunkle and
was not unfairly prejudicial to her. This isolated
portion of a single recording, however, did not
justify the trial court’s admission of the five other
conversations.
¶49 This Court finds that the trial court abused
its discretion in admitting the five other conversations, which together lasted over 69 minutes,
with almost no relevant content and substantial
2046
content that was both irrelevant and unduly
prejudicial. We note that even if we review the
court’s decision to allow the playing of the
recordings only for plain error, the trial court
should have quickly realized, upon hearing the
recordings at trial, how irrelevant and how
unfairly prejudicial they were, and cut them off.
This did not happen. We find that the trial
court’s total failure to limit or constrain this evidence was plain error.88
¶50 We conclude that the trial court’s admission of irrelevant and unfairly prejudicial character evidence entitles Dunkle to a new trial. In
particular, we emphasize the serious error and
potential prejudice from the admission of the
“witchcraft” evidence and the recordings of
Dunkle’s telephone conversations with Kelly, as
summarized above. We further conclude that the
prosecutor’s improper reliance upon and
emphasis of this irrelevant and unduly prejudicial character evidence rendered Dunkle’s trial
fundamentally unfair, such that the jury’s guilty
verdict cannot be relied upon. This Court simply
cannot confidently conclude, in the context of
Dunkle’s trial, that the improperly admitted evidence and the prosecutor’s misconduct did not
impact the verdict in this case.89 Hence Dunkle’s
conviction for first-degree murder must be
reversed.
¶51 In Proposition IV, Dunkle challenges portions of the testimony of O.S.B.I. Special Agent
Tom Linn, who testified both as the lead investigator in the case and as a firearms expert. Dunkle argues that Linn repeatedly offered improper
and speculative opinion testimony. We note that
Agent Linn did offer his own opinion about
whether Dunkle was telling the truth,90 comment
on things that “bothered” him about her statements, and speculate about why she might have
acted as she did.91 Yet defense counsel offered
almost no objection to Linn’s testimony.
Although we need not decide this issue, due to
our resolution of Proposition III, we caution that
in any retrial of this case, both parties should
strive to ensure that witness testimony, particularly expert testimony, be constrained within
proper limits.92
¶52 In Proposition V, Dunkle challenges the
State’s use of computer-generated crime scene
“reenactments,” during the testimony of its
crime scene reconstruction expert and final witness, OSBI Agent Iris Dalley.93 Dunkle challenged
the admissibility of the computer-generated animations and requested a Daubert hearing on the
exhibit and the methodology used by Dalley to
develop it.94 The trial court agreed with the
State’s argument that Dalley’s presentation was
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“not a Daubert issue,” noted that the reenactments were “just a demonstrative aid,” and
overruled Dunkle’s objections.95
¶53 The parties agree that the current question
is governed by our decision in Harris v. State,96 in
which we addressed the admissibility of such
computer-generated exhibits.97 In Harris, we
reviewed the South Carolina Supreme Court’s
approach to such evidence in Clark v. Cantrell,98 as
well as some of the major treatises on evidence,99
and determined that the three-part test used in
Clark was the appropriate standard in Oklahoma
as well.100 We wrote:
In order for a video or computer crime scene
reenactment to be seen by a jury, as an aid to
illustrate an expert witness’ testimony, the
court should require (1) that it be authenticated — the trial court should determine that
it is a correct representation of the object portrayed, or that it is a fair and accurate representation of the evidence to which it relates,
(2) that it is relevant, and (3) that its probative value is not “substantially outweighed
by the danger of unfair prejudice, confusion
of the issues, misleading the jury, undue
delay, needless presentation of cumulative
evidence, or unfair and harmful surprise.” 101
¶54 We also held, in Harris, that juries should
be specifically instructed regarding such
reenactments:
The court should give an instruction, contemporaneous with the time the evidence is
presented, that the exhibition represents
only a re-creation of the proponent’s version
of the event; that it should in no way be
viewed as an actual recreation of the crime,
and like all evidence, it may be accepted or
rejected in whole or in part.102
We further noted that such video and computergenerated reenactments “are properly categorized as illustrative or demonstrative aids used
to explain the expert’s testimony” and that they
should not be made available for the jury during
deliberations, as they have “no independent evidentiary value.”103
¶55 In Harris, the victim was shot three times
in the head and once in the side of the abdomen,
while seated in the passenger’s seat of a vehicle.104 The video reenactment used in that case
was based upon bullet trajectories through the
body and head of the victim into the seat and
side panels of the vehicle.105 The computer-generated animation was based upon the trajectory of
the bullet passing through the victim’s abdomen
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and into the vehicle seat.106 We found that both
exhibits were authenticated through the State’s
expert witness and that they were “correct representations of the objects and scenes portrayed”
and were “fair and accurate representations
of the evidence to which they relate.”107 Thus
we concluded that the exhibits were “both
authenticated and relevant.”108
¶56 In our evaluation of the probative/prejudicial value of the reenactment exhibits, we
noted that “[w]ith the measurements of the bullet trajectories, entry and exit wounds, it was
possible through scientific and/or technical
analysis to come to a conclusion about the position of the victim’s body at the time of the shooting.”109 Hence this Court determined that the
probative value of the reenactment exhibits “was
not substantially outweighed by any of the
dangers enumerated in 12 O.S.1991, § 2403.”110
We concluded that the trial court in Harris did
not abuse its discretion in allowing the video
reenactments to be played for the jury in that
case.111
¶57 We must now decide whether the computer-generated “reenactments” in the current case
are comparable to those allowed in Harris. In
Dalley’s computer-generated animations, a barefoot female and a male victim are posed in various positions relative to steps on the outside of a
home, with a gun held by one or the other or
both of them; and the entire frame is then rotated, to allow viewing from different angles.112 We
note, initially, that the State’s purpose in using
the reenactments in this case was basically the
same as its purpose in Harris, i.e., to persuade the
jury that the defendant’s version of what happened was inconsistent with the evidence in the
case, while the State’s version was consistent
with the evidence.113 Yet the State’s expert in the
current case did not have nearly as much solid
“data” with which to work in forming her conclusions about the relative positions of the victim
and the defendant. And Dunkle’s widely varying, incomplete, and often confusing statements
about what happened made it very difficult — if
not impossible — to actually determine what her
“version” of the shooting really was.114
¶58 In the current case, the victim had only one
bullet wound; the bullet did not pass through
any other solid surface; and the bullet was never
found. Consequently, although the trajectory of
the bullet through the body of the victim could
be determined, Dalley had no objective physical
evidence from which to determine the position
of the victim’s body, at the time of the shooting,
in relation to some other known point or surface.
Instead, Dalley testified that she “determined
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that the body had simply fallen backwards,” so
she simply “stood the body back up on his feet”
in her animations, by tipping the body straight
back up from the position where it was found on
the ground.115 Dalley also testified that it was
“consistent” with the evidence to assume that
the victim was standing straight up or nearly
straight up when he was shot, since he fell
backward instead of forward.116
¶59 Hence Dally positioned the victim in the
same spot in each of her four animations — a few
feet in front of the three steps leading into the
home, standing upright, facing the home. She
also positioned the gun in the same position,
based upon the bullet trajectory through the
body of the victim, at a distance of 12 inches from
the muzzle of the gun to the victim’s chest. Dalley testified that she chose this distance based
upon Gordon Robertson’s statement to her that
the powder patterns on the victim’s shirt were
“most consistent” with a distance of 12 inches.117
The trajectory of the bullet firing is shown as a
line originating from the gun and going through
the male victim in each of the animations. Dalley
then varied the following in the four animations:
the position of the barefoot woman, who was
holding the gun, and how the gun was being
held.
¶60 In the first animation, the victim is shown
with his arms extended forward, holding the
gun with both hands and pointed backward, firing into his own chest. The barefoot female is
placed on the top step, inside the open door leading into the home, looking on as the victim
shoots himself. According to Dalley this animation was based upon Dunkle’s statement that the
victim “shot himself.” Dalley concluded that this
scenario was not a viable one, because “typically
suicides are contact wounds,” while in this animation the male shooter is holding the gun one
foot out in front of his chest.118
¶61 In the second animation, the barefoot
female is placed on the second step. She is holding the grip of the gun in her right hand, pointed
at the male victim, whose hands are placed along
both sides of the gun. This animation was based
upon Dunkle’s statement to Linn about the position of their hands as she and White struggled
over the gun. Dalley testified that Dunkle did not
describe anyone having a finger on the trigger,
which Dalley noted was inconsistent with the
fact that the gun fired. Dalley also noted that the
positioning of the hands around the side of the
gun in this scenario was inconsistent with the
fact that the gun had properly ejected a casing
and re-cycled after firing.119
2048
¶62 In the third animation, the barefoot female
is placed on the first step. She is holding the gun
in her right hand, pointed at the male victim,
whose hands are again placed along both sides
of the gun. This time the victim is leaning slightly toward the female and turning in toward the
right. Dalley testified that this scenario was
based on Dunkle’s statement to Linn about how
they were struggling over the gun and White
was pushing into her hip or abdomen. Dalley
acknowledged that her animation was “not
exactly what was in the statement,” since Dunkle
described herself as being one step further up
and White pushing into her, while Dalley’s
model did not show this “hard contact.” Dalley
testified that she had a hard time constructing
this animation so that it would be consistent
with the evidence that the victim fell backward
and the female did not fall. She concluded that
this scenario “did not work” and that considering the first three models, “none of these models
is consistent with all the evidence.”
¶63 When asked if there was “a scenario or a
situation, based upon [her] experience, that is
consistent with all of the evidence,” Dalley introduced her fourth animation. In this animation
the barefoot female is placed on the second step.
She is holding the gun in her right hand, shooting directly at the male victim, who is facing her
with his arms resting at his sides. During her
final closing argument, the prosecutor argued
that Dalley used the first three animations to
“put[] a picture to what Laura Dunkle has been
telling us,” but that Dalley’s fourth animation, of
Dunkle shooting directly at White as he faced
her, was “the only scenario consistent with the
evidence at the scene.”120
¶64 This Court finds that the State’s use of the
four computer-generated animations in the current case was inappropriate and potentially
highly misleading to Dunkle’s jury. Although the
animations were authenticated through the testimony of Dalley, who created them, the record
does not establish that they were truly relevant
to the questions at issue in Dunkle’s trial, since
the record does not establish that they were “fair
and accurate representations of the evidence to
which they related.” The evidence in this case
simply did not adequately support the assumptions implicit in each of the four animations, in
particular, the positioning of the male victim’s
body and the pictured distance between the victim and the gun. Nor does the record support
Dalley’s choices in defining the three possible
“versions” of Dunkle’s story.
¶65 While we recognize the potential value of
computer-based animations within trials, we
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likewise recognize their potential danger, as did
the South Carolina Supreme Court in Clark: “[A]
computer animation can mislead a jury just as
easily as it can educate them. An animation is
only as good as the underlying testimony, physical data, and engineering assumptions that
drive its images. The computer maxim ‘garbage
in, garbage out’ applies to computer animations.” 121 We conclude that the underlying data
in the current case — including physical evidence, analysis of evidence at the crime scene,
and statements from Dunkle — simply did not
adequately support Dalley’s computer animations. Hence the trial court should have kept
these animations out of Dunkle’s trial.
¶66 The first animation is perhaps the most
misleading. While Dunkle stated, at various
times, that White was attempting to kill himself
(or at least that she thought he was) and that he
“shot himself,” she never described a scenario in
which he held a gun one foot out in front of his
chest and pulled the trigger, as she meekly and
helplessly watched. The animation is intended to
make Dunkle’s suicide story appear ridiculous
and does so; yet the story depicted is not one that
Dunkle ever told. The second and third animations are likewise based upon particular statements attributed to Dunkle, but leave out many
other statements attributed to her, without any
justification for the choice to “animate” particular statements, but not others.
¶67 Unfortunately, none of Dunkle’s statements, even looked at in conjunction with other
evidence, was clear or complete enough to justify the specific “picture” depicted in each of the
first three scenarios. Rather, it appears that the
State simply used the first three animations as
“straw men” or “red herrings,” to be knocked
down and dispensed with, in order to set up the
final animation as the “only one” that was consistent with all the evidence.
¶68 The use of computer-based animations has
the potential to be highly prejudicial and misleading, since the computer-based images lend
an air of technical and scientific certainty to the
“reenacted” evidence, which may or may not be
justified.122 For example, in the current case, the
State used Dalley’s four computer animations, in
conjunction with her testimony, to suggest that
Dalley’s expert testimony conclusively established the falseness of Dunkle’s stories and the
correctness of the State’s theory of the case, when
in fact, Dalley’s analysis was not based upon
principles of math, science, or physics. In reality,
Dalley’s “crime scene reconstruction” testimony
was based almost entirely upon her analysis of
the “consistency” of particular statements by
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Dunkle with other evidence put on by the State
at trial: evidence about how suicides “usually”
occur, evidence about the placement of keys near
the victim’s arm, evidence of a “heel scrape” in
the dirt between the victim’s legs, evidence
about the workings of the gun and how it was
found, etc. Although Dalley’s use of the computer-generated animations suggested that she was
adding a computer-based analysis to the other
evidence in the case, a careful review of her testimony reveals that she was simply restating evidence already introduced and re-summarizing
areas in which various statements by Dunkle
were inconsistent with this evidence.123
¶69 Hence we conclude that the computergenerated animations used in the current case
were not comparable to those approved in Harris. Because the animations were not fairly representative of the evidence in the case, they were
not relevant. And even if they were relevant,
their probative value was substantially outweighed by their potential to mislead and confuse Dunkle’s jury regarding the strength and
evidentiary basis of the State’s evidence. Furthermore, because the animations in the present
case were essentially a further restatement of the
State’s theory of the case — based upon previously admitted evidence and without new content or analysis — they were needlessly and
unfairly cumulative. Thus the trial court abused
its discretion in allowing the playing of the computer-generated animations in the current case.
¶70 We note that Dunkle’s counsel thoroughly
cross-examined Dalley about the basis for her
testimony and her reenactments, thereby revealing some of the limitations of her analysis. On
the other hand, and contrary to our decision in
Harris,124 Dunkle’s jury was not given any
instruction about how it should understand and
evaluate the State’s computer-generated animations. And the prosecutor’s portrayal of the significance of these animations — arguing that
they established that Dunkle was lying and that
the fourth one depicted “the only scenario consistent with the evidence at the scene”— further
exacerbated their potentially prejudicial effect.
We conclude that in the context of Dunkle’s trial,
defense counsel’s efforts to reveal the limitations
of the animations were insufficient to adequately
mitigate the impact of this misleading evidence,
which should not have been admitted in the first
place. Hence the trial court’s error in admitting
this evidence was not harmless.
¶71 We have noted that the trial court failed to
instruct Dunkle’s jury about how it should
understand and evaluate the “reenactment” animations presented in this case, in accord with
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our decision in Harris. Yet we must acknowledge
that even though the Harris decision was published in 2000, the most current version of our
Oklahoma Uniform Jury Instructions for Criminal cases (“OUJI-CR”) still does not contain a
uniform instruction regarding such evidence.
Hence it is unsurprising that neither the parties
nor the trial court recognized the need for such
an instruction. Further delay in formulating this
instruction, consistent with the mandate and language of Harris,125 is neither advisable nor
required. Hence we hereby find that the following instruction shall constitute OUJI-CR 9-46,
entitled “Reenactment Evidence,” and that it
shall be given contemporaneously with the presentation of video, computer-based, or other comparable “reenactment” evidence, in accord with
Harris and this opinion.
The State/The defendant is about to present
evidence in the form of a video/computer
animation/[other], which is intended to help
illustrate certain testimony or evidence
being presented to you. The exhibit being
presented is not an actual recording or video
of the event that is shown. Rather, the exhibit is offered simply as a “reenactment” of
what may have occurred. The exhibit is
intended to help you better understand the
State’s/defendant’s position about how an
event occurred (or did not occur) and that
party’s understanding of the evidence supporting this interpretation. The exhibit is
intended to assist you in your role as jurors,
and like all evidence, it may be accepted or
rejected by you, in whole or in part.
This instruction shall be used in all cases involving such reenactment evidence, following the
publication of this opinion.126
¶72 In Proposition VI, Dunkle argues that the
trial court erred by failing to instruct her jury on
the affirmative defense of excusable homicide by
accident or misfortune.127 The State correctly
notes that Dunkle failed to request this instruction at trial. Due to our resolution of Propositions
III and V, we need not decide this claim in the
current appeal. We note, however, that the
State’s assertion on appeal that there was “no
evidence” to support Dunkle’s defense that the
shooting was accidental, i.e., that it would have
been improper to instruct the jury on excusable
homicide, is certainly wrong.128 Evidence was
presented to support Dunkle’s claim that White
was shot by accident, as Dunkle attempted to
prevent him from committing suicide. If
believed, this evidence would establish that the
shooting was “excusable,” and thus not a crime
2050
at all. Although disputed, the evidence presented within Dunkle’s first trial was adequate to
support the giving of the cited instructions in
this case.
¶73 In Proposition VII, Dunkle challenges the
trial court’s failure to instruct her jury regarding
parole eligibility when the jury sent the following questions out during deliberations: “What is
the minimum time served for life w/o parole?
How about w/parole?”. The trial court informed
the parties that it intended to respond as follows:
“You have all the instructions and evidence that
are proper for you to consider.” Although
defense counsel agreed at trial that this was the
“proper return,” Dunkle now argues that her
jury should have been instructed regarding the
significance of Oklahoma’s “85% Rule.”129
¶74 This issue has been rendered moot by our
reversal of the jury’s verdict in this case. We note,
however, that this Court has recently addressed
this exact issue, in Anderson v. State,130 and that
any retrial in this case should be conducted in
accord with this authority.
¶75 In Proposition VIII, Dunkle raises an ineffective assistance of counsel claim. This claim,
which is not fully developed, has been rendered
moot by our reversal of the jury’s verdict in this
case.
¶76 For the reasons discussed in connection
with Propositions III and V, Dunkle’s conviction
for first-degree murder and her sentence of life
without parole must be reversed.
Decision
¶77 The Judgment and Sentence of the district
court is REVERSED, and this case is REMANDED FOR RETRIAL. Pursuant to Rule 3.15, Rules
of the Oklahoma Court of Criminal Appeals, Title 22,
Ch.18, App. (2006), the MANDATE is
ORDERED issued upon the delivery and filing
of this decision.
ATTORNEYS AT TRIAL
Douglas J. Smith, Attorney at Law, 104 E. Eufala,
Norman, Oklahoma 73069,
Lesley March, Assistant District Attorney, Robert
E. Christian, District Attorney, Grady County
Courthourse, 217 N. 3rd., Chickasha, Oklahoma
73018, Attorney for the State
ATTORNEYS ON APPEAL
James D. Pybas, Appellate Defense Counsel, P.O.
Box 926, Norman, Oklahoma 73070, Attorney for
Appellant,
W.A. Drew Edmondson, Attorney General of
Oklahoma, Donald D. Self, Assistant Attorney
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General, 112 State Capitol Building, Oklahoma
City, Oklahoma 73105, Attorneys for Appellee.
OPINION BY: CHAPEL, P. J.
LUMPKIN, V.P.J.: CONCUR IN PART/
DISSENT IN PART
C. JOHNSON, J.: CONCUR
A. JOHNSON, J.: CONCUR
LEWIS, J.: CONCUR
1. A call was placed to 911 from Dunkle’s residence early that morning, but when the 911 operator answered, she did not get a response on
the line and assumed the caller had hung up.
2. Merrel acknowledged on cross examination that in her written
statement, she described Dunkle as referring to simply a “gun accident,”
without any of the details about White carrying things and heading to his
truck and stumbling.
3. Some blood spatter was found on the ground near White’s left foot,
but the lack of other blood at the scene (beyond that on and below the
body) suggested that White stopped moving around soon after being
shot.
4 The State maintained that if White had been holding the gun at the
time it fired, it would have fallen somewhere closer to the right side of his
body. The State maintained that White, who was right-handed, was carrying a set of keys at the time he was shot, which were found near his
right arm, and that the gun was dropped by Dunkle from her position on
the stairs facing White, after she shot him at point-blank range as he
approached.
5. Dunkle’s recorded statement is unclear regarding whether she had
any control or contact with the gun at the time it went off.
6. Dunkle’s defense at trial was essentially that White was attempting
to commit suicide or at least that Dunkle — who had both a brother and
an ex-husband who committed suicide — believed that White was about
to shoot himself. Yet Dunkle never presented any cogent explanation of
why White, who witnesses consistently described as “happy-go-lucky,”
would want to kill himself. On the other hand, the State, which maintained that Dunkle intentionally shot White, likewise never offered any
significant evidence regarding her motive for shooting her husband-tobe.
7. The written statement, though less detailed, is essentially consistent with Dunkle’s tape-recorded statement.
8. Although the potential significance of these keys was emphasized
at trial, the evidence presented did not establish what they were for or to
whom they belonged. The evidence did establish that White’s keys to his
truck were found in the ignition.
9. Dunkle was barefoot and wearing a nightgown when officers
arrived at the scene. She was transported and interviewed still in her
nightgown, and neither Linn nor Perske could recall whether or not she
was allowed to obtain any type of shoes.
10. Although Perske remained, she did not take any notes — since
Linn did not ask her to take notes — and professed almost no independent recollection of what Dunkle said.
11. Although at trial Linn noted that Dunkle had already “been
Mirandized,” at preliminary hearing he testified that he did not Mirandize Dunkle “because she wasn’t under arrest” and that she was free to
leave. The State’s argument in its brief that Linn did not Mirandize Dunkle “because she had already been advised of those rights,” is misleading,
since there is no evidence in the record that Linn was aware that Foster
had Mirandized Dunkle earlier that morning.
12. Linn acknowledged that he did not record or videotape the interview, even though interview rooms equipped with recording equipment
were available. He testified that in his “33 years of law enforcement and
25 years plus in the FBI,” he had “never” recorded or videotaped an interview. Linn testified that he took notes, but that he destroyed these notes,
in compliance with O.S.B.I. policy, after he completed his final report.
Linn also testified that after completing a rough draft report, he consulted with Perske before completing the final report.
13. Dunkle noted that her ex-husband had shot himself the preceding
year, that she had helped stop one of her brothers who was attempting to
shoot himself with a handgun, and that another one of her brothers later
did commit suicide.
14. Linn noted that the .45 caliber semi-automatic pistol was his
“favorite handgun.”
15. Linn testified: “And I can say this with authority. If someone is
holding that weapon improperly, it will cut that person’s hand severely.”
16. On cross-examination, Agent Linn acknowledged that Dunkle’s
fingerprints were not found on the gun, that the State failed to perform a
Vol. 77 — No. 19 — 7/15/2006
gunshot residue test on either Dunkle or White (to determine whether
either of them was in close proximity to the gun at the time it fired), that
there was no DNA evidence in the case, and that they never found the
bullet that killed White, which would have helped establish the relative
positions of White and the gun at the time it fired.
17. Gofton defined “contact wound” injuries to include the range
from the muzzle of the gun actually touching the victim up to several millimeters away.
18. Robertson testified that based upon the gunshot powder patterns
on White’s shirt, the firing distance would be “from contact to 18 inches.”
He testified that it “was not a contact wound because of the powder dispersement around the wound,” but also noted that “there was some tearing and large holes in the shirt that can be made with a contact-type
wound.” Robertson acknowledged, “we don’t know” how far away the
gun was, but concluded that the muzzle of the gun was “farther away
than contact, . . . but less than 18 inches from the shirt.”
19. 443 U.S. 307, 319-20, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979).
20. 1985 OK CR 132, ¶ 7, 709 P.2d 202, 203-04.
21. Jackson, 443 U.S. at 319-20, 99 S.Ct. at 2789, (emphasis in original);
Spuehler, 1985 OK CR 132, ¶ 7, 709 P.2d at 203-04 (quoting Jackson).
22. Dunkle’s jury was instructed according to the former “reasonable
hypothesis” uniform instruction for cases involving circumstantial evidence, which was abolished by this Court in Easlick v. State, 2004 OK CR
21, ¶ 15, 90 P.3d 556, 559. Thus Dunkle had the benefit of this special
instruction, with its seemingly higher conviction standard for cases relying on circumstantial evidence. We conclude that whether we review
Dunkle’s sufficiency of the evidence challenge under the “unified
approach” adopted in Easlick, id. at ¶ 4, 90 P.3d at 557, or under our preEaslick jurisprudence, the challenge fails.
23. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694
(1966). Dunkle’s pre-trial motion to suppress her statements on this basis
was overruled by the trial court.
24. See Wilson v. State, 1998 OK CR 73, ¶ 64, 983 P.2d 448, 464.
Although Dunkle filed a reply brief, she did not respond to any of the
State’s arguments regarding Proposition II.
25. See Thompson v. Keohane, 516 U.S. 99, 112, 116 S.Ct. 457, 465, 133
L.Ed.2d 383 (1995) (determine whether defendant was “in custody”
under Miranda by evaluating whether “reasonable person” facing the
same factual circumstances would “have felt he or she was not at liberty
to terminate the interrogation and leave”); Stansbury v. California, 511 U.S.
318, 320, 114 S.Ct. 1526, 1528-29, 128 L.Ed.2d 293 (1994) (“In determining
whether an individual was in custody, a court must examine all of the circumstances surrounding the interrogation, but ‘the ultimate inquiry is
simply whether there [was] a “formal arrest or restraint on freedom of
movement” of the degree associated with a formal arrest.’”) (all citations
omitted). We note that Linn did not inform Dunkle that she was free to
leave and that Dunkle was subjected to prolonged accusatory questioning, while in her nightgown, far from her home, and without her own
transportation to return home.
26. See Hammer v. State, 1988 OK CR 149, ¶¶ 5-6, 760 P.2d 200, 202 (no
Fifth Amendment violation where defendant Mirandized by officers in
California, taken to airport and placed in holding cell for 90 minutes to
await flight back to Oklahoma, and then confessed during flight).
27. See McNeil v. Wisconsin, 501 U.S. 171, 182 n.3, 111 S.Ct. 2204, 2211
n.3, 115 L.Ed.2d 158 (1991); State v. Bradshaw, 457 S.E.2d 456, 467 (W.Va.
1995).
28. The footnote in McNeil discusses the possibility of a defendant
attempting, at his preliminary hearing in one case, to ward off being
approached by officers in regard to any other crime, by prospectively
invoking his Miranda rights regarding any other possible offense. The
footnote, which is clearly dicta, postulates: “The fact that we have
allowed the Miranda right to counsel, once asserted, to be effective with
respect to future custodial interrogation does not necessarily mean that
we will allow it to be asserted initially outside the context of custodial interrogation, with similar future effect.” McNeil, 501 U.S. at 182 n.3, 111 S.Ct.
at 2211 n.3 (emphasis added). Similarly, the Bradshaw opinion, relying on
the McNeil footnote, likewise addresses how early Miranda rights can be
invoked, in order to ward off future questioning: “[T]he Miranda right to
counsel has no applicability outside the context of custodial interrogation. Therefore, until the defendant was taken into custody, any effort on
his part to invoke his Miranda rights was, legally speaking, an empty gesture.” 457 S.E.2d. at 467. The West Virginia Court’s later statement, that
“where police have given Miranda warnings outside the context of custodial interrogation, these warnings must be repeated once custodial interrogation begins,” is not based upon McNeil. See id. Nor is it the law that a
defendant can claim a Fifth Amendment Miranda violation simply by
asserting that although he or she was Mirandized at the initiation of questioning, he or she was not actually “in custody” until some time shortly
after the questioning began — hence the warning “didn’t count.”
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29. Linn testified that he spoke to Foster only “very, very briefly” that
morning.
30. See Davis v. State, 2004 OK CR 36, ¶ 30, 103 P.3d 70, 79.
31. See Donnelly v. DeChristoforo, 416 U.S. 637, 645, 94 S.Ct. 1868, 1872,
40 L.Ed.2d 431 (1974) (consider whether challenged conduct made trial
“so fundamentally unfair as to deny [defendant] due process”); Darden v.
Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 2471, 91 L.Ed.2d 144 (1986).
32. 12 O.S.2001, § 2404(A). The equally well-established corollary to
this principle is as follows:
Evidence of other crimes, wrongs, or acts is not admissible to prove
the character of a person in order to show action in conformity
therewith. It may, however, be admissible for other purposes, such
as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.
12 O.S.2001, § 2404(B). See generally Burks v. State, 1979 OK CR 10, ¶ 2, 594
P.2d 771, 772 (“The general rule is that when one is put on trial, one is to
be convicted — if at all — by evidence which shows one guilty of the
offense charged . . . .”); Wilkett v. State, 1984 OK CR 16, ¶¶ 10-12, 674 P.2d
573, 576 (while State has limited right to rebut defense evidence of good
character, it has no general right to present evidence of bad character).
33. The State did not present any evidence or offer any particular theory about why Dunkle would have shot White. Defense counsel focused
on the State’s failure to offer any motive evidence during his closing argument. And the prosecutor responded, during her final closing argument,
“We don’t have to know why Laura Dunkle chose to take his life. You
don’t have to decide why. There are many things in this life we’re never
going to know why. What you know is how.” The prosecutor later added,
“We don’t have to have a motive. We know she did it.”
34. Some of the irrelevant evidence presented was objected to at trial
by defense counsel; some of it was not. In Proposition VIII, Dunkle raises
an ineffective assistance of counsel claim, noting that although defense
counsel challenged much of the State’s character evidence before trial, he
failed to renew many of his objections during trial.
35. Defense counsel noted that this allegation appeared in some DHS
materials and that on the night of the shooting, Dunkle’s sons (ages 9 and
11 at the time) were asked whether their mom did “church things” (referring to witchcraft) at home, and they answered “no.” The State noted that
witchcraft was also referred to in one of the recorded telephone conversations with Kelly.
36. On the night of the shooting, officers had a very difficult time
waking the two boys and became concerned that they might have been
drugged. They questioned the boys about whether Dunkle had given
them anything, and one of them referred to being given “headache” medicine. Hence they decided to have the boys tested for drugs. Their urinanlysis tests were negative for barbiturates and every other tested substance, though they did reveal the presence of an “amphetamine” in both
boys. Later investigation revealed that the boys had been prescribed
Adderall XR, an amphetamine commonly prescribed for Attention Deficit
Hyperactivity Disorder.
37. In particular, the State noted that Dunkle’s insistence that Kelly
find her son’s diary was significant, as was a reference to a previous
“quarrel” between Dunkle and White.
38. Defense counsel’s motion in limine also requested that if any of
the letters or phone calls were admitted, that they be redacted to eliminate references to irrelevant and prejudicial information.
39. Defense counsel responded that he would just like notice of which
calls were going to be used and he could object at trial.
40. Although the State presented some evidence that White attended
hearings with Dunkle as she attempted to regain custody of her children,
no evidence was presented substantiating the allegation that Dunkle’s
motivation for her relationship with White was obtaining his assistance
in getting her children back. The State dropped this allegation from its
closing argument.
41. During her final closing argument, the prosecutor again argued
that “this defendant lured [Gary White] into her web, a web of deceit, lies,
and destruction . . . .” She continued, “Gary White made a fatal mistake,
and that fatal mistake was hooking up with this defendant. Because, as
you’ve now heard, she is like a black widow spider and all around her is
death.”
42. The prosecutor elicited testimony from Robin Klinglesmith, a coworker and friend of White’s, that when she first saw Dunkle with White,
“cold chills went up my spine.” She also elicited testimony from Sharon
White, White’s ex-wife, that Dunkle “gave me the willies for some reason.”
43. The prosecutor stated that if Perske “knows anything about that,
it’s only going to be that she heard something about that and that is why
she asked them.” She added, “We’re not going into anything long and
sorted [sic] about that subject.”
2052
44. When asked on cross examination where Perske had gotten the
“church stuff” information, she stated that she did not recall where she
had gotten that information.
45. The State argues in its brief that Priest’s answer was unresponsive
to the State’s question about his first impression of Dunkle. The State’s
questioning, however, paralleled its earlier questioning of the witnesses
who testified that Dunkle gave them “cold chills” and “the willies.” The
State correctly notes that defense counsel failed to object to any of this testimony.
46. It is hard to read the entire trial transcripts and take seriously the
State’s argument, in its brief, that “[t]here was no attempt by the prosecutor to link the defendant to witchcracft.”
47. During this recorded conversation, Kelly informs Dunkle that in
one of the original searches of her home, officers found “your damn
witchcraft shit you got back in the closet.” Dunkle becomes frantic upon
hearing this and argues, “They’re not allowed to do that.” Kelly responds
that her attorney said that they could search her home because of the
shooting and warns Dunkle that it will probably be brought up in one of
her custody hearings. Dunkle is extremely upset by this suggestion and
asserts, “Honey, that’s a legal religion in America”; she also describes
witchcraft as “an allowed religion in America.” Kelly, who obviously disapproves, ends the conversation by telling her that he has “boxed all that
up” for her.
48. The record contains no discussion about whether the jury had
access to Exhibit 15A during its deliberations and no information about
whether or not the jury had the equipment to replay it.
49. State v. Leitner, 34 P.3d 42 (Kan. 2001).
50. Id. at 51. The Kansas Supreme Court described Wicca as “a pagan
religion, sometimes referred to as witchcraft.” Id. Although initially the
trial court prohibited any mention of witchcraft, he later ruled that the
defendant had “opened the door,” and allowed the prosecutor to ask
about the defendant’s involvement with “witchcraft” and “pagan religion.” Id. at 51-54.
51. See Dawson v. Delaware, 503 U.S. 159, 112 S.Ct. 1093, 117 L.Ed.2d
309 (1992) (finding violation of 1st and 14th Amendments from admission
of evidence of defendant’s membership in Aryan Brotherhood in capital
sentencing). The Supreme Court of Delaware had ruled that the membership evidence was admissible, since the defendant’s character is a
legitimate consideration in a capital sentencing. Id. at 163, 112 S.Ct. at
1096. Nevertheless, the U.S. Supreme Court concluded that the evidence
should not have been admitted, because the State failed to establish any
connection between membership in the group and the crime at issue:
“Even if the Delaware group to which Dawson allegedly belongs is racist,
those beliefs, so far as we can determine, had no relevance to the sentencing proceeding in this case.” Id. at 166, 112 S.Ct. at 1098. The Court
noted that “the Aryan Brotherhood evidence was not tied in any way to
the murder of Dawson’s [white] victim.” Id. The Court concluded that
Dawson’s First Amendment rights were violated, “because the evidence
proved nothing more than Dawson’s abstract beliefs.” Id. at 167, 112 S.Ct.
at 1098. It can be inferred from Dawson that the Aryan Brotherhood evidence would have been even more improper if it had been admitted in
the first stage of Dawson’s murder trial, since the defendant’s “character”
is not even a legitimate consideration in the jury’s determination of guilt
or innocence.
52. See United States v. Abel, 469 U.S. 45, 105 S.Ct. 465, 83 L.Ed.2d 450
(1984) (evidence of membership in Aryan Brotherhood admissible to
impeach defense witness, where other evidence presented showing that
members of Aryan Brotherhood are sworn to lie on behalf of each other).
In Abel, the Supreme Court recognized that the Constitution does not
erect an absolute ban on evidence about a defendant’s constitutionally
protected beliefs and associations. Where the State can establish a connection between the beliefs/associations and an issue before the jury, evidence regarding a defendant’s beliefs/associations will sometimes be
admissible. Id. at 52-54, 105 S.Ct. at 469-70.
53. The Leitner court noted that in Flanagan v. State, 846 P.2d 1053
(Nev. 1993), the Nevada Supreme Court derived the following rule from
Dawson: “Evidence of a constitutionally protected activity is admissible
only if it is used for something more than general character evidence.”
Leitner, 34 P.3d at 54 (quoting Flannagan, 846 P.2d at 1056).
54. Leitner, 34 P.3d at 55.
55. Id. The court found that “the evidence showing that Leitner participated in Wicca bears no relevance to the crimes charged against her.”
Id. Hence it had “no probative value.” Id. The court also concluded that
the witchcraft evidence did not impeach the defendant. Id. at 56
56. Id. at 55. The State maintained that Leitner had “opened the door,”
by testifying that her husband had beaten her for no reason, because
(argued the State) the real reason he had beaten her was that she had gotten involved with witchcraft and attended a Wicca ceremony. Id. at 52.
57. Id. at 55, 56.
58. Id. at 56.
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59. Id. at 57. Leitner testified that she tried to kill her husband two
times during their marriage — once by putting rat poison in his coffee,
and once by putting what she thought were poison mushrooms in his
omelette. Id. at 47. She told various people that she and her boys would
be better off financially if her ex-husband were dead; and she admitted to
shooting him in the head three times, at close range, using two different
guns. Id. at 56. Hence the Kansas Supreme Court concluded that “overwhelming evidence contradicts Leitner’s story of self-defense.” Id. at 57.
60. In Dawson, the Supreme Court observed that “on the present
record one is left with the feeling that the Aryan Brotherhood evidence
was employed simply because the jury would find these beliefs morally
reprehensible.” 503 U.S. at 167, 112 S.Ct. at 1098. It is difficult not to draw
a parallel conclusion in the present case.
61. We reject the State’s argument that Dunkle “opened the door to
the issue of witchcraft,” by asking about it on cross examination. Defense
counsel had repeatedly objected to this witchcraft evidence and struggled
to keep it out of Dunkle’s trial. We will not find that Dunkle has waived
her right to challenge the admission of this evidence, simply because her
counsel attempted to blunt its impact when the trial court allowed it in.
62. This Court’s prejudice analysis does not assume that the jury
heard this discussion, though we recognize that if the jury did listen to
the entire discussion during its deliberations, the witchcraft references
therein would have been extremely prejudicial.
63. Thus the evidence in Dunkle’s case was totally unlike the evidence in Leitner.
64. In particular, defense counsel failed to object to the testimony of
Dick Jones, a DHS child welfare specialist, about why DHS was involved
with the family and the lack of emotion displayed by Dunkle’s sons when
they were informed of the shooting and told that their mother was in jail.
65. In fact, the record suggests that Dunkle’s counsel made a reasonable strategic decision to allow this testimony and then rebut it with the
results from the urinalysis tests. During the motion hearing, defense
counsel stated that he had “no problem” with the State presenting evidence that the urinalysis tests done on Dunkle’s sons did not reveal the
presence of any sleeping pills, sedatives, or barbiturates. Hence we also
reject Dunkle’s (undeveloped) ineffective assistance claim in this regard
(Proposition VIII).
66. And there is no plain error.
67. We note that the State’s remark in its closing argument that the
sleepiness of Dunkle’s sons was “not normal” is not the same as arguing
that they were drugged.
68. This was the only letter offered into evidence at trial.
69. For example, Dunkle’s request that Kelly contact her sister and
give her Dunkle’s car, so she can take “the boys” with her to Washington,
appears irrelevant and unduly prejudicial, since it suggests Dunkle is trying to have her sons taken away without DHS permission. The letter also
contains substantial irrelevant ranting about attorneys involved in the
family’s DHS case, Dunkle’s work history, and how unfair her bond
amount is.
70. Dunkle’s instruction that Kelly find her younger son’s diary
“before anyone else finds it” appears admissible, since it suggests possible evidence tampering and consciousness of guilt. Similarly, the statement “When I screw up I don’t mess around do I!!” also appears admissible.
71. Dunkle’s letter praises White admiringly and states that he and
Dunkle were “soul-mate[s]” and that “this is a horrendous accident.” It
also states, “This is a very tragic accident[;] it was not in any possible way
anything else. I was trying to prevent this happening. He wasn’t going
out to shoot coyotes & I had planned to knock the gun out of his hand . .
. .”
72. We likewise reject Dunkle’s (undeveloped) Proposition VIII ineffective assistance claim in this regard, which doest not explain how
defense counsel’s failures prejudiced Dunkle.
73. This total assumes the playing of the May 30 recording was cut
short, as the court ordered. The compact disc that constitutes Exhibit 15A
also contains a recording of a May 22, 2003, conversation between Dunkle and Kelly, which the State chose not to play at trial.
74. When Dunkle asks Kelly, on May 8, to get her purse and find her
medication and a phone number inside, Kelly whines, “Laura, I don’t
want to go through your purse.” In this initial call Kelly sounds reluctant
to help Dunkle, dubious about her story, and very worried about getting
himself in trouble. For example, he states that if he is going to go to her
home, he wants to have the sheriff there to observe, so he doesn’t get himself in trouble. Kelly also expresses shock when Dunkle suggests that he
should have taken her boys and “hid out with them in Blanchard,” so
they wouldn’t get taken away. Kelly notes that that would be “kidnapping.”
Similarly, in the May 13 call, when Dunkle tries to get Kelly to make
sure that White’s tools are secure (so his ex-wife won’t steal them), Kelly
responds, “Now Laura, I’m not going to get involved in that. You’re try-
Vol. 77 — No. 19 — 7/15/2006
ing to put me involved in shit I shouldn’t be involved in.” Near the end
of the call he states that he is afraid to touch anything in her home and
notes, “Like Mama said, I’m getting my shit involved in shit that I don’t
know what I’m getting into.”
75. Dunkle concludes the May 8 phone call to Kelly by expressing
appreciation for his help and stating, “I love you very much for doing
this. Thank you.” Kelly responds, “Bye.” There is still no sign of romance
in the May 13 phone call. By the May 27 phone call, however, Kelly is urging Dunkle to write him some “love letters,” and when Dunkle concludes
their call by thanking him and expressing her love, he responds, “I love
you too.” And by June 18, they are calling each other by pet names, carrying on like a pair of cooing/cursing love birds doing battle against the
world, and having exchanges like: “I love you.” “I love you more.” “I love
you best.” “I love you better.” During this same conversation Dunkle
states that she is putting him down as her “common law” (husband) and
is signing her parental rights over to him.
76. During her final closing argument, the prosecutor asserted: “The
relationship between Michael Kelly and this defendant is very important.
We’re not saying that there’s a conspiracy. Michael Kelly is just an old
dumb boy, who obviously loves Laura Dunkle, and she starts telling him
what to do as soon as she gets to jail.” The prosecutor later added,
“Michael Kelly is just an unwitting assistant after the fact for Laura Dunkle.”
77. The prosecutor apologized for the length of the recordings, but
noted, “[T]here’s something very important in the phone calls. She is
making plans with Michael Kelly two days after she killed Gary, and she
has no feelings, no concern about anyone other than herself. She gives
more feeling to her dogs and to her cats. That’s what she’s concerned
about.” The prosecutor noted that in the May 13 call, the jurors could hear
Dunkle’s “hardness of her heart and callousness,” particularly in her
obvious enthusiasm upon learning that the story of White’s shooting had
made the newspaper and that her picture was on the front page. The
prosecutor commented that Dunkle’s reaction to hearing that she had
made the paper “should give anybody cold chills”:
You would think she won the lottery. You don’t hear that much joy
when she’s talking about her children. You sat and looked at this
defendant as she sat here this week. These phone calls show you
the real Laura Dunkle. You hear how she talks to him, Michael
Kelly. You hear how she curses. You hear her anger, directed at her
own attorney. You hear her anger, you hear the real Laura Dunkle.
78. When Exhibit 15A (containing the recorded telephone conversations) was offered into evidence, the following exchange occurred:
DEFENSE COUNSEL: You’ve already ruled on this, but we would
have a standing objection to this.
THE COURT: Okay. Objection is noted. Overruled.
79. Since defense counsel failed to rearticulate his arguments for
excluding the recordings, we will also consider whether the admission of
these recordings, in toto, constituted plain error.
80. The State offers no response, however, to Dunkle’s argument that
the recordings were filled with material that was unduly prejudicial to
her.
81. The State also asserts that Dunkle’s telephone “expression of love
for Mr. Kelly,” and her statement that she is listing him as her common
law husband “show a motive for killing the victim to get him out of the
way.”
82. Although the State focused upon inconsistencies in Dunkle’s
statements to investigators, it never argued that the phone calls contained
any examples of Dunkle changing her story.
83. During the May 30 call, Dunkle refers to the shooting as “a dreadful accident” and tells Kelly that “the forensics show that it was an accident,” which “proves my innocence.”
84. It is unclear from this particular discussion whether Dunkle was
attempting to “conceal” the diary or whether she simply wanted to find
it to help support her defense case.
85. The State specifically noted that it had chosen not to play the
recorded conversation of May 22, 2003, since evidence on this issue was
already before the jury through Dunkle’s letter. We note that in the
(unplayed) May 22 recording, Dunkle is much more insistent that Kelly
find the diary and not let “anyone” else get it, because it is “the most
important piece of evidence we have.”
86. Near the end of her final closing, the prosecutor argued: “And
when you look over at this person here in this courtroom, this defendant,
don’t ask yourself, can a little woman like this do that? Remember the
woman on the tape and all those phone calls.”
87. In the midst of discussing how much they miss each other and
can’t wait for Dunkle to get out of jail, Dunkle states, “I’m not doing anything more stupid, I swear. This is it.” She later states, “No more stupidness, right?”, and Kelly responds, “Yup.”
88. This Court notes that although Dunkle fails to fully develop her
Proposition VIII ineffective assistance claim, the record we have reviewed
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regarding Proposition III supports her ineffective assistance claim as well.
Defense counsel’s failure to fully articulate his objections at trial and to
renew his request that the recordings be redacted was inadequate performance and not part of any reasonable strategy. Furthermore, this
Court finds that if counsel had done his job and kept the inadmissible
recordings out of Dunkle’s trial, there was a reasonable probability of a
different result in the jury’s guilty verdict and in Dunkle’s sentence of life
without parole. See Strickland v. Washington, 466 U.S. 668, 687-88, 694, 104
S.Ct. 2052, 80 L.Ed.2d 674 (1984) (ineffective assistance requires showing
of deficient performance and resulting prejudice).
89. In other words, the court’s errors and State misconduct were not
“harmless.” We note that the improper evidence and argument also likely impacted the jury’s sentencing decision in this case.
90. When asked by the State what the condition of the (properly
cycled) gun found at the scene tells “us” about the story told to him by
Dunkle, Linn responded, “That tells us that’s not true. That’s not a true
story.” Later, during cross examination, Linn testified that it was his “very
educated and experienced opinion” that Dunkle was “lying” to him.
91. For example, Linn noted that although Dunkle initially called 911,
there was no response when the operator answered; and Dunkle then
called her friend and asked that friend to call 911 for her. Linn testified,
“There’s a little time lapse in there. Perhaps that’s to get your thoughts
straight instead of answering questions that the 911 operator may ask.”
92. See, e.g., Mitchell v. State, 2006 OK CR 20 ¶ 65 n.142, __ P.3d __, __
n.142 (credibility and truthfulness of other witnesses not proper subject of
expert testimony).
93. These reenactments are in the record as files on a compact disc,
which is State’s Exhibit 48.
94. See Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S.Ct.
2786, 125 L.Ed.2d 469 (1993). The State argued that Daubert did not apply.
95. Dunkle does not raise a Daubert claim on appeal; she challenges
only the trial court’s decision allowing the jury to view the computer-generated animations.
96. 2000 OK CR 20, 13 P.3d 489. The parties also agree that we review
the trial court’s decision, allowing use of this evidence, for abuse of discretion. Id. at ¶ 28, 13 P.3d at 497.
97. The Harris case involved two different types of reenactments: a
video reenactment using live actors and a computer-generated animation. Id. at ¶ 6, 13 P.3d at 492. The current case involves only computergenerated animations.
98. Id. at ¶¶ 12-14, 13 P.3d at 494-95 (reviewing Clark v. Cantrell, 529
S.E.2d 528 (S.C. 2000)).
99. Id. at ¶ 11, 13 P.3d at 493-94 (quoting from Wharton’s Criminal Evidence, Eleventh Edition, and 2 Whinery, Oklahoma Evidence).
100. Id. at ¶ 15, 13 P.3d at 495 (“We believe that the South Carolina
guidelines represent a model for Oklahoma trial courts.”).
101. Id. at ¶ 16, 13 P.3d at 495 (citing 12 O.S.1991, §§ 2401-2403, 2901).
102. Id. at ¶ 17, 13 P.3d at 495. We also noted that the trial court must
ensure that the opposing party had a “prior opportunity to examine the
reenactment and underlying data.” Id. Dunkle does not dispute that she
was given this opportunity in the current case.
103. Id. at ¶ 18, 13 P.3d at 495. Once again, the record does not reveal
which exhibits were provided to Dunkle’s jury or whether the jury could
have reviewed evidence on compact disc.
104. Id. at ¶¶ 4-5, 13 P.3d at 492.
105. Id. at ¶ 6, 13 P.3d at 492; id. at ¶¶ 21-22, 13 P.3d at 496
106. Id. at ¶ 6, 13 P.3d at 492.
107. Id. at ¶ 20, 13 P.3d at 495.
108. Id.
109. Id. at ¶ 25, 13 P.3d at 496.
110. Id. at ¶ 26, 13 P.3d at 496. We noted, in Harris, that the reenactment exhibits helped clear up possible confusion regarding the expert
witness’s testimony and that the trial court had given the jury a cautionary instruction regarding the reenactments. Id. at ¶¶ 26-27, 13 P.3d at 49697.
111. Id. at ¶ 28, 13 P.3d at 497.
112. The visual effect is of a still picture being rotated, rather than a
movie or true “reenactment” of a shooting, which appears similar to the
exhibits used in Harris. See id. at ¶ 11, 13 P.3d at 493 (“The particular illustrative aids at issue here are similar in nature to posed photographs.”).
113. Id. at ¶¶ 21-24, 13 P.3d at 496.
114. In addition, Dalley relied most heavily on specific details from
statements made by Dunkle to Agent Linn, which, as noted ealier, were
not recorded or videotaped.
115. On cross examination, Dalley testified that she “knew” the victim wasn’t walking or moving around after he was shot, “[b]ecause there
were no bloodstains in the area other than the stains that were on the
ground at his left foot that appeared to be blood.” Yet when the medical
examiner was asked at trial how quickly the victim “would have succumbed to the wound,” he responded: “That’s very difficult to say. Not
2054
instantaneous, not a situation of numerous hours, but probably within
several minutes.”
116. Dalley testified that a scuff mark in the dusty, rocky dirt between
the victim’s legs (pictured in State’s Exhibit 21) was likewise “consistent”
with the victim scraping that dirt with his left heel, with his left leg
“slightly bent,” and then when the body fell, the leg relaxed and moved
(down and to the left) to the position were it was found.
117. Robertson’s trial testimony was rather different, however, since
he testified that the distance to the gun could have been anywhere from
just past “contact” up to 18 inches. See supra note 18. At trial he was
unwilling to speculate about a particular distance being the most likely.
118. Dalley noted that in her career she had never investigated a suicide where the evidence suggested that the victim “had held a handgun
at that distance and shot himself or herself.”
119. The prosecutor then commented, “So at this point, we’ve thrown
out the first one, we’ve thrown out the second one. Let’s look at the third
one.”
120. Although the prosecutor continually attempted to get Dalley to
testify that the fourth animation was “the one scenario that is consistent”
with the evidence, Dalley herself was somewhat more restrained, testifying instead that the final animation was “the one that I saw that was consistent with all of the evidence.”
121. See Clark, 529 S.E.2d at 536 (quoting article in South Carolina Trial
Lawyer Bulletin); see also Harris, 2000 OK CR 20, ¶ 12 n.5, 13 P.3d at 494
n.5 (quoting Clark).
122. In Harris, we distinguished “computer animations,” which are
used primarily to illustrate an expert’s testimony, from “computer simulations,” which “are created by entering data into computer models
which analyze the data and reach a conclusion,” and thus “may have
independent evidentiary value.” See Harris, 2000 OK CR 20, ¶ 12 n.6, 13
P.3d at 494 n.6. While this distinction is an important one, a jury that is not
properly instructed (as Dunkle’s jury was not) could easily confuse a
mere computer animation with its more substantial counterpart, the computer simulation — particularly if the jury is encouraged to do so by the
presenting party.
123. For example, Dalley summarized her analysis stating, “a scenario that is consistent with all of the evidence is that Mr. White did not
have his hands on the gun at the time the gun was fired”; she further
noted, “if his hands are not on the gun, then someone else shot the gun.”
124. See Harris, 2000 OK CR 20, ¶ 17, 13 P.3d at 495 (requiring that jury
be given specific cautionary instruction at time video or computer-based
reenactment exhibits are presented); see also Harris (Lumpkin, J., specially
concurring), ¶ 3, 13 P.3d at 501 (“It is even more imperative in cases which
present expert testimony plus video/computer generated reenactments
that the jury be instructed at the time the evidence is presented, in addition to the final written instructions, as to the limited purpose of the evidence and the expert testimony.”).
125. See id.
126. We do not here adopt an instruction for cases involving computer or other technology-based “simulations,” discussed supra in note 122,
since this case does not involve such evidence and such evidence could
potentially have independent evidentiary value, beyond merely illustrating the testimony of a witness or other evidence.
127. In particular, Dunkle asserts that her jury should have been
instructed according to OUJI-CR 2d 8-27, 8-28, and 8-30.
128. The State itself presented evidence that the shooting was an
“accident,” by presenting Dunkle’s statements that it was an accident.
The State’s position that these statements should not be believed does not
change the fact that they were evidence in support of Dunkle’s defense
that the shooting was accidental. See, e.g., Kinsey v. State, 1990 OK CR 64,
¶ 8, 798 P.2d 630, 632 (“This Court has consistently held that a defendant
is entitled to an instruction on his theory of defense where there is evidence to support it, even if such evidence is discredited.”) (citation omitted); Cipriano v. State, 2001 OK CR 25, ¶ 30, 32 P.3d 869, 876 (“It is well
established that a defendant is entitled to an instruction on any theory of
defense supported by the evidence, as long as that theory is tenable as a
matter of law.”) (citation omitted).
129. See 21 O.S.2001, § 12.1 and 21 O.S.Supp.2002, § 13.1. These two
provisions together comprise the “85% Rule.”
130. 2006 OK CR 6, 130 P.3d 273.
The Oklahoma Bar Journal
Vol. 77 — No. 19 — 7/15/2006
LUMPKIN, VICE-PRESIDING JUDGE: CONCUR IN PART/DISSENT IN PART
¶1 I concur in the finding that Appellant was
denied a fair trial by improper character evidence. The admission of character evidence is
governed by 12 O.S. 2001, § 2404. The evidence
in this case did not fall under one of the well
established exceptions for admissibility. Further,
the prosecution over-emphasized Appellant’s
connection to witchcraft to the point that it
detracted the jury from their duty to decide the
case based upon the law and the facts. Therefore,
I agree that the witchcraft evidence was not relevant and not admissible but not for the reasons
stated in the majority opinion.
¶2 I dissent to the Court’s finding of an abuse
of discretion by the trial court in admitting the
computer generated crime scene re-enactments.
The re-enactments were properly authenticated
by Agent Dalley and were based upon her expert
testimony. Agent Dalley testified the re-enactments were based upon the various statements
Appellant made to the police and by comparing
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Vol. 77 — No. 19 — 7/15/2006
those statements to the actual physical evidence.
Defense counsel thoroughly cross-examined
Agent Dalley about the re-enactments and the
basis for her conclusions. Any inconsistencies in
her testimony or in the evidence used to support
her conclusions or in her conclusions themselves
were issues for the jury to weigh, not this Court.
¶3 Based upon her testimony in both direct
and cross-examination, there was no danger the
jury would be confused into believing the reenactments were actual images of the crime. The
re-enactments were clearly presented as possibilities with Agent Dalley commenting on the likelihood of each based upon her expert review of
the physical evidence. The re-enactments were
relevant evidence to rebut Appellant’s claims
that the shooting was an accident or suicide.
Contrary to the majority opinion, this case
involves the same type of “solid data” as in Harris v. State, 2000 OK CR 20, 13 P.3d 489, and the
computer generated crime scene re-enactments
were properly admitted under Harris.
Access and Visitation
Grant Money
The Oklahoma Department of Human Services, Child
Support Enforcement Division (CSED) is soliciting
applications from courts, local public agencies and
nonprofit private entities, for contracts to establish and
administer local programs to increase non-custodial
parents’ access to and visitation of their children.
Activities may include mediation, counseling, education,
development of parenting plans, visitation monitoring/
supervision and neutral drop-off and pickup or developing guidelines for visitation and alternative custody
arrangements. CSED has received Federal funding of
$100,000.00 for this year to accomplish this goal.
Entities awarded contracts under this program may use
the funding awarded to pay for 90% of cost for
approved activities. The Applicant must provide 10% of
the cost in the form of a cash or in-kind match. Applications must be post marked by July 28, 2006.
For Application information contact Bettite Davenport or
Jim Sielert, Division of Child Support Enforcement,
Capitol Station, Box 53552, Oklahoma City,
OK
73152,
Telephone
(405)
522-2875,
[email protected]
or
Email:
[email protected].
The Oklahoma Bar Journal
2055
Members of the W.D. Oklahoma Bar
The Western District of Oklahoma’s local civil rules committee is actively
seeking input with regard to those rules that should be added, deleted, or
modified in some way. The members of the committee are:
The Honorable Bob Bacharach, Chairman
United States Magistrate Judge
U.S. Courthouse
200 N.W. 4th St., Room 1305
Oklahoma City, OK 73102
[email protected]
Christine Cave, Esq.
Abowitz, Timberlake & Dahnke
P.O. Box 1937
Oklahoma City, OK 73101-1937
[email protected]
Robert J. Troester, Esq.
First Assistant United States Attorney
210 West Park Ave., Suite 400
Oklahoma City, OK 73102
[email protected]
Russell A. Cook, Esq.
Hartzog Conger Cason & Neville
201 Robert S. Kerr, Suite 1600
Oklahoma City, OK 73102
[email protected]
Robert D. Baron, Esq.
119 North Robinson, Suite 320
Oklahoma City, OK 73102
[email protected]
Joe M. Hampton, Esq.
Ryan Whaley Hampton & Bomhoff
119 N. Robinson Ave., Suite 900
Oklahoma City, OK 73102
[email protected]
Susan K. Noland. Esq.
Office of Attorney General
4545 N. Lincoln Blvd., Suite 260
Oklahoma City, OK 73105-3498
[email protected]
Tony G. Puckett, Esq.
McAfee & Taft
211 N. Robinson, 10th Floor
Oklahoma City, OK 73102
[email protected]
Brooke S. Murphy, Esq.
Crowe & Dunlevy
20 N. Broadway, Suite 1800
Oklahoma City, OK 73102
[email protected]
You are encouraged to provide written suggestions to any of the committee
members. If you wish to remain anonymous, omit your name. You may also supply
your written suggestions through the Western District of Oklahoma website. To do so,
please send your comments to [email protected].
You are encouraged to supply your comments as soon as you can because the
committee’s work is already underway. The committee’s study of the local civil rules
will be ongoing. You are encouraged to supply written comments to a committee
member whenever you believe there is a local rule matter that should be considered.
2056
The Oklahoma Bar Journal
Vol. 77 — No. 19 — 7/15/2006
Court of Civil Appeals Opinions
Manner and Form of Opinions in the Appellate Courts;
See Rule 1.200, Rules — Okla. Sup. Ct. R., 12 O.S. Supp. 1996 (1997 T. 12 Special Supplement)
IN THE SUPREME COURT OF THE STATE
OF OKLAHOMA
Tuesday, June 20, 2006
The following cases are assigned to the Court of
Civil Appeals Oklahoma City, Divisions 1 and 3.
The judges serving in the Oklahoma City Divisions are Carol M. Hansen, Glenn D. Adams,
Larry E. Joplin, Kenneth L. Buettner and E. Bay
Mitchell, III and Robert Dick Bell. The judges sit in
three-judge panels which rotate periodically, but
all assigned cases will be decided by three of the
above named judges. Any party may seek disqualification of any judge pursuant to
Okla.Sup.Ct.R. 1.175, 12 O.S.2001, Ch. 15, App. 1
and 20 O.S. 2001 §§ 30.3, 1401 and 1402.
102,446 Chambers v. Smith.
102,471 Crabtree & Jennings v. Moghadam &
Mirzale.
102,497 Breaux v. Bryant.
102,561 Denise Roberts et al v. Farmers Insurance Company.
102,588 Cactus Petroleum Corp et al. v. Chesapeake Operating Inc.
102,598 Dept of Transportation v. Martindale et
al.
102,910 Chaparral Energy LLC v. CE Harmon
Oil Inc.
103,175 Claire’s Stores Inc. v. Ramona R. Johnson, et al.
103,221 Mary Lora Zavala v. State of Oklahoma.
103,373 Campbell Wholesale Co. et al v. Oklahoma Tax Commission.
103,376 Lewis Houston et al v. Dawn Collins
Zellner et al.
103,378 Tommy Kirkes v. Fort Gibson State Bank
et al.
103,387 Oklahoma Firefighters Pension v. City
of Spencer, OK, et al.
103,394 Delores Gatliff v. Rev. George J. Pupius
et al.
103,405 Ron Edington v. Flying J. Inc.
The proceedings are to be governed by Oklahoma
Supreme Court Rules, Part V, Appeals Assigned
to Court of Civil Appeals. 12 O.S. 2001 Ch. 15,
App. 1. Until the Court of Civil Appeals has made
its final disposition, all motions, petitions and
Vol. 77 — No. 19 — 7/15/2006
other paperwork shall be filed with the Clerk of
the Supreme Court who serves ex officio as the
clerk of the Court of Civil Appeals room B-2, State
Capitol, Oklahoma City, Oklahoma, 73105.
DONE BY ORDER OF THE SUPREME COURT
this 20th day of June, 2006
/s/
Joseph M. Watt
CHIEF JUSTICE
Thursday, July 6, 2006
102,439 McCamey v. Medical Centers of Oklahoma, LLC, et al.
102,466 Baker v. Baker.
102,528 High Plains Wireline Services v. Mike
Cheap & Throckmorton Insurance
Agency.
102,530 Superior Stucco, Inc. v. Record Pools,
Inc. et al.
102,744 Teresa Brown et al v. Karen Kay Kidd.
102,972 Terence R. Childs v. William Norman
Partis et al.
103,143 Jennifer Johnson v. State of Oklahoma.
103,161 Carrie Gee v. All 4 Kids, Inc., et al.
103,186 Carl E. Fugate v. Schlumberger.
103,223 Angie Cassias v. Commercial Services
Corp et al.
103,225 Michael Dantrassy v. State of Oklahoma.
103,302 Western Heights Independent School
Dist No. 1-41 v. State of Oklahoma, ex
rel., Oklahoma State Dept. of Education
et al.
103,311 L Savage Trust v. Little Bear Resources,
LLC et al.
103,408 Shawn Ferguson v. Edmond School District.
103,452 Kellie Graves v. City of Ponca City.
103,459 RIC Leasing Inc. v. Interstate Fire &
Casualty Co.
103,463 Little Bear Resources LLC v. Hewitt
Energy Group Inc. et al.
The proceedings are to be governed by Oklahoma
Supreme Court Rules, Part V, Appeals Assigned
to Court of Civil Appeals. 12 O.S. 2001 Ch. 15,
App. 1. Until the Court of Civil Appeals has made
The Oklahoma Bar Journal
2057
its final disposition, all motions, petitions and
other paperwork shall be filed with the Clerk of
the Supreme Court who serves ex officio as the
clerk of the Court of Civil Appeals room B-2, State
Capitol, Oklahoma City, Oklahoma, 73105.
DONE BY ORDER OF THE SUPREME COURT
this 6th day of July, 2006
/s/
Joseph M. Watt
CHIEF JUSTICE
Tuesday, June 20, 2006
The following cases are assigned to the Court of
Civil Appeals Tulsa, Divisions 2 and 4. The judges
serving in the Tulsa Divisions are John F. Reif,
Keith Rapp, Jerry L. Goodman, and Jane P. Wiseman and Doug Gabbard, II. The judges sit in
three-judge panels which rotate periodically, but
all assigned cases will be decided by three of the
above named judges. Any party may seek disqualification of any judge pursuant to
Okla.Sup.Ct.R. 1.175, 12 O.S. 2001, Ch. 15, App. 1
and 20 O.S. 2001 §§ 30.3, 1401 and 1402.
102,602 Carter et al v. Michael Schuster et al.
102,605 Robert Munguia v. MAC 23 et al.
102,658 State of Oklahoma v. Debra Lynn
McCleary
102,681 Jack Odell et al v. Frank Cranor.
102,803 Michael Hayes v. Catherine Maude
Hayes.
102,909 Teddy Adam Boggs v. Jamie Kathlyn
Boggs.
103,067 Multiple Injury Trust Fund v. Frank
Wade & WCC.
103,152 State of Oklahoma v. Sherry Spechtenhauser.
103,337 Tom Wilcox v. Town of Seiling, Oklahoma, et al.
103,348 Opal Ellis v. Oklahoma Insurance Dept.
103,351 Tommie L. Matthews v. Ronnie Funck et
al.
103,371 Deborah Alene Barr et al v. Linda Kay
Dawson et al.
103,388 Debbie Bartels et al v. Department of
Corrections.
103,401 Mohawk Properties LLC v. Gregory V.
Copeland et al.
The proceedings are to be governed by Oklahoma Supreme Court Rules, Part V, Appeals
Assigned to Court of Civil Appeals. 12 O.S. 2001
Ch. 15, App. 1. Until the Court of Civil Appeals
has made its final disposition, all motions, petitions and other paperwork shall be filed with the
2058
Clerk of the Supreme Court who serves ex officio
as the clerk of the Court of Civil Appeals room B2, State Capitol, Oklahoma City, Oklahoma,
73105.
DONE BY ORDER OF THE SUPREME COURT
this 20th day of June, 2006
/s/
Joseph M. Watt
CHIEF JUSTICE
Thursday, July 6, 2006
102,339 American Airlines et al v. James
Leuthesser & WCC.
102,625 Phyllis Jean Spradling-Wassom v.
Claude Jack Wassom.
102,661 Dana Darlene Chancellor v. Gary Don
Winham et al.
102,696 Sammy A. Tigert v. Southwest Publishing Inc et al.
102,869 Jerry Bradley Pittman v. Charla Michelle
Pittman.
103,163 Suntrust Bank, Atlanta v. Adair Co.
Board of Tax Roll Corrections etc.
103,170 Melisa Bouton v. Department of Human
Services.
103,182 Zinc Corp of America & Ace American
v. In The Matter of the Death of Louis
Reeder, Naomi Reeder and WCC.
103,185 Betty Lou Brister v. Atoka Public
Schools & WCC.
103,190 Jane S. Apperson v. Oklahoma Department of Health & WCC.
103,229 Bloom Electric Service et al Rudolph A.
Krivanek & WCC.
103,310 Lindsay Schulster v. St of OK, Department of Public Safety.
103,418 Charles R. Freeman v. City of Altus
Board of Adjustment.
103,422 MidFirst Bank v. Tully L. Dunlap.
103,441 Angela Nider v. Republic Parking Inc.
103,458 Phillip & Diane Lancaster v. Ronald D.
Hale, M.D.
103,467 Brandy J. Davis v. Charles A. Smith et al.
103,477 Donna Pershica etc., v. Select Specialty
Hospital OKC, Inc., et al.
The proceedings are to be governed by Oklahoma Supreme Court Rules, Part V, Appeals
Assigned to Court of Civil Appeals. 12 O.S. 2001
Ch. 15, App. 1. Until the Court of Civil Appeals
has made its final disposition, all motions, petitions and other paperwork shall be filed with the
The Oklahoma Bar Journal
Vol. 77 — No. 19 — 7/15/2006
Clerk of the Supreme Court who serves ex officio
as the clerk of the Court of Civil Appeals room B2, State Capitol, Oklahoma City, Oklahoma,
73105.
DONE BY ORDER OF THE SUPREME COURT
this 6th day of July, 2006
/s/
Joseph M. Watt
CHIEF JUSTICE
2006 OK CIV APP 68
IN THE MATTER OF THE PROTEST TO THE
DENIAL OF THE SALES TAX CLAIMS FOR
REFUND OF HILAND DAIRY FOODS
COMPANY, LLC., Appellant, v. OKLAHOMA
TAX COMMISSION, Appellee.
No. 102,613. May 5, 2006
APPEAL FROM THE OKLAHOMA TAX
COMMISSION
REVERSED AND REMANDED
Thomas D. Robertson, Karen M. Grundy, Stuart E.
Van DeWiele, NICHOLS, WOLFE, STAMPER,
NALLY, FALLIS & ROBERTSON, INC., Tulsa,
Oklahoma, for Appellant,
Douglas B. Allen, General Counsel, Marjorie L.
Welch, First Deputy General Counsel, Oklahoma
City, Oklahoma, for Appellee.
OPINION BY CAROL M. HANSEN, Judge:
¶1 Appellant, Hiland Dairy Foods Company,
LLC. (Dairy), seeks review of an order of
Appellee, Oklahoma Tax Commission (OTC),
denying Dairy’s protest to the denial of its sales
tax refund claim. At issue is whether the Oklahoma Sales Tax Code, 68 O.S. 2001 §1350 et seq.,
requires a manufacturer to obtain from OTC a
separate manufacturer exemption permit (MEP)
for each place of business in the State of Oklahoma. We hold it does not and reverse.
¶2 Dairy is a manufacturer and wholesale distributor of dairy products with its business headquarters in Springfield, Missouri. It has manufacturing facilities in Springfield as well as in Norman and Chandler, Oklahoma, Fayetteville and
Fort Smith, Arkansas, and Wichita, Kansas. Dairy
acquired the Norman plant in approximately 1994
from Gilt Edge, and acquired the Chandler plant
in May 2001 from Farm Fresh. Dairy held MEP
No. 242028 issued by OTC with an effective date
of December 10, 1986 and an expiration date of
February 6, 2004. The permit was issued to
“Hiland Dairy Co.” of Springfield, Missouri, and
listed the business location as “Hiland/Gilt Edge”
in Norman, Oklahoma.
Vol. 77 — No. 19 — 7/15/2006
¶3 Apparently unfamiliar with the benefits of
the MEP, Dairy’s management in Oklahoma had
been paying sales taxes on electric service at both
the Norman and Chandler plants. In late 200l and
2002, representatives of OTC and the Oklahoma
Department of Commerce visited the general
manager of the Norman plant to promote state
programs for economic growth in Oklahoma. The
manager testified the representatives told him
energy used in the manufacturing process was tax
exempt and the company could apply for a
refund of sales taxes paid on energy up to 36
months prior to the application. He said he was
unaware Dairy had previously obtained an
exemption certificate. Dairy’s controller said he
and a successor manager met with an OTC auditor regarding the sales tax exemption on utilities,
and the auditor told them the company was eligible for a refund up to 36 months upon approval of
its tax exemption. The successor manager for the
Norman plant said he filed an application for tax
exemption for the Norman plant, and the controller filed an application for the Chandler plant.1
¶4 On April 7, 2004, an OTC auditor sent a letter to Dairy regarding the Chandler plant, stating
Dairy “qualifies as a manufacturer and a permit
has been updated.” The letter referenced permit
no. 242028, the same number as on Dairy’s earlier
permit. The auditor sent a letter to OG&E the
same day notifying it of Dairy’s sales tax exemption effective August 8, 2003.
¶5 A reports’ clerk for OG&E testified his job
duties included processing sales tax refund
requests for customers. He said his practice was to
“ask for a refund for three years or back to when
the account started.” Dairy had not owned the
Chandler plant for three years prior to August 8,
2003, so he requested a refund from July 2001, the
date of Dairy’s first billing from OG&E on the
Chandler plant, to April 2004, the date OG&E was
notified of the exemption.
¶6 On August 3, 2004, OTC issued letters of
credit to OG&E totaling $258,171.35 for Dairy’s
refunds on the Chandler plant. On August 30,
2004, OTC sent a letter to Dairy stating
$128,604.24 was refunded in error and asking for
repayment. The letter stated,
It has been determined by the Office of
General Counsel of the Oklahoma Tax Commission that a manufacturing exemption cannot be extended to a taxpayer prior to the date
of registration and application for exemption.
This position has been affirmed by the
Supreme Court of the State of Oklahoma in
the case of Apache Corporation vs. State of
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2059
Oklahoma, ex rel. Oklahoma Tax Commission.
In view of this position, the portion of the
refund based on sales tax paid by Hiland
prior to December of 2002 has been denied.
Dairy’s attorney sent OTC a letter declining to
repay the amount demanded. OTC treated the letter as a protest and set the matter for hearing.
¶7 At hearing, Dairy took the position OTC had
a policy of allowing refunds of taxes erroneously
remitted for a period up to three years prior to the
date of filing a claim for refund, and its change of
policy based on Apache Corp. v. State ex rel. Okla.
Tax Comm’n (Apache), 2004 OK 48, 98 P.3d 1061,
should have prospective application only. Dairy
argued in the alternative it already had an MEP
for the relevant time period, and the MEP applied
to the Chandler plant as well as the Norman
plant. OTC took the position refunds were not
available for sales taxes paid prior to the date of
application for an MEP, and the Oklahoma Sales
Tax Code requires a manufacturer to have a separate MEP for each manufacturing facility location
in the state. After hearing evidence, the OTC
administrative law judge issued an order denying
Dairy’s protest. OTC adopted the order as its
own.
¶8 In a protest hearing before the Tax Commission, the protestant bears the burden of proving it
is entitled to the relief requested. Enterprise Management Consultants, Inc. v. State ex rel. Oklahoma
Tax Comm’n, 1988 OK 91, 768 P.2d 359, 362 n.11. In
reviewing an order of the Tax Commission, we
will examine the entire record to determine
whether the findings and conclusions set forth in
the order are supported by substantial evidence.
We will affirm the order if it is supported by substantial evidence and is otherwise free of error.
Samson Hydrocarbons Co. v. Oklahoma Tax Comm’n,
1998 OK 82, 976 P.2d 532, 535.
¶9 Dairy appeals pursuant to 68 O.S.Supp. 2002
§225, contending OTC erred in failing to find OTC
had a policy of granting pre-application refunds
of sales tax, in allowing a change in that policy to
apply retrospectively, and in finding Dairy’s earlier exemption for its Norman plant did not apply
to the Chandler plant. The Oklahoma Sales Tax
Code exempts from taxation “[s]ales of goods,
wares, merchandise, tangible personal property,
machinery and equipment to a manufacturer for
use in a manufacturing operation.” 68 O.S.Supp.
2005 §1359(1). In 1998, the Legislature added
§1359.22 to the Code, requiring manufacturers to
obtain an MEP in order to claim the tax exemption
of §1359(1).
2060
¶10 In Apache, the Oklahoma Supreme Court
considered whether an oil and gas producer who
compressed and dehydrated gas at the wellhead
to make it marketable was eligible for a manufacturer’s sales tax exemption on its processing
equipment. The producer had not applied to OTC
for an MEP. The Court held the wellhead processing that transformed an unmarketable product
into a marketable one qualified as manufacturing,
but the producer was not entitled to a sales tax
refund because it had failed to follow available
statutory procedures under §1359.2 to obtain the
exemption. Apache, 98 P.3d at 1064 and 1067.
¶11 The Court’s opinion in Apache did not
change existing law, but applied a statutory
change that occurred in 1998. Following enactment of §1359.2, a manufacturer is required to
obtain an MEP in order to claim the sales tax
exemption provided in §1359(1). If OTC employees represented otherwise, they did so ultra vires.
Where there is no power to act, a public official
cannot bind a government entity even if he or she
mistakenly or falsely asserts such authority. Indiana Nat’l Bank v. State Dept. of Human Services, 1993
OK 101, 857 P.2d 53, 64.3 Dairy may not enforce
representations made by OTC employees acting
outside their authority.
¶12 The parties agree Dairy continuously held a
valid exemption permit, issued under prior law
and apparently renewed under current law, listing the location of the Norman plant. OTC asserts
a manufacturer must obtain a separate MEP for
each manufacturing site in the state, arguing
§1359.2(C) ties the MEP to the sales tax permit
issued under 68 O.S.Supp. 2003 §1364 by prescribing that the expiration date of the MEP correspond with the expiration date of the sales tax
permit. Section 1364(E) provides,
A separate [sales tax] permit for each additional place of business to be operated must
be obtained from the Tax Commission for a
fee of Ten Dollars ($10.00). Such permit shall
be good for a period of three (3) years. The
Tax Commission shall grant and issue to each
applicant a separate permit for each place of
business in this state, upon proper application therefor and verification thereof by the
Tax Commission.
The Legislature expressly directed each applicant
must obtain a separate sales tax permit for each
place of business, but it did not include such language in the statute requiring MEPs. Instead, it
directed that “each resident manufacturer” must
secure an MEP.
¶13 Our obligation is to give effect to the intent
of the Legislature as expressed in the language of
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Vol. 77 — No. 19 — 7/15/2006
the statute. Strong v. Laubach, 2004 OK 21, 89 P.3d
1066, 1070. We will presume the Legislature
expressed its intent in the statute and intended
what it expressed. King v. King, 2005 OK 4, 107
P.3d 570, 579. The language of §1359.2 unambiguously places the duty to obtain an MEP on each
resident manufacturer, not on each place of business of the manufacturer. That a manufacturer
may have multiple sales tax permits as a result of
having multiple places of business does not of
necessity lead to the conclusion the manufacturer
must have multiple MEPs. The State of Oklahoma
has a need for sales tax permits, under which the
vendor collects sales tax from consumers, to be
separated by locality, because the sales tax rate
may differ depending upon the place of delivery
of property or services subject to the tax. In contrast, there is no need for MEPs to be separated by
locality, because their purpose is to notify the
manufacturer’s suppliers of its sales tax exempt
status.
¶14 OTC’s action in changing the statutory
requirements by internal policy without a rulemaking violates the Administrative Procedures
Act, 75 O.S. 2001 §302(D), which prohibits an
agency from expanding upon or limiting a statute
by “internal policy, memorandum, or other form
of action not otherwise authorized by the Administrative Procedures Act.” OTC erred as a matter
of law in ruling the Oklahoma Sales Tax Code
requires a manufacturer to have a separate MEP
for each manufacturing facility location in the
state.
¶15 Accordingly, OTC’s order is REVERSED
and this matter is REMANDED for determination
of the amount of Dairy’s sales tax refund.
BELL, P.J., and JOPLIN, J., concur.
1. The sales tax refund for the Norman plant is not at issue.
2. 68 O.S. 2001 §1359.2 provides,
A. In order to qualify for the exemption authorized in paragraph 1 of
Section 1359 of Title 68 of the Oklahoma Statutes, at the time of sale, the
person to whom the sale is made, provided the purchaser is a resident of
this state, shall be required to furnish the vendor proof of eligibility for the
exemption as required by this section. All vendors shall honor the proof of
eligibility for sales tax exemption as authorized under this section, and
sales to a person providing such proof shall be exempt from the tax levied
by Section 1350 et seq. of Title 68 of the Oklahoma Statutes.
B. Each resident manufacturer wishing to claim the exemption authorized in paragraph 1 of Section 1359 of Title 68 of the Oklahoma Statutes
shall be required to secure from the Oklahoma Tax Commission a manufacturer exemption permit, the size and design of which shall be prescribed
by the Tax Commission. This permit shall constitute proof of eligibility for
the exemption provided in paragraph 1 of Section 1359 of Title 68 of the
Oklahoma Statutes. Each such manufacturer shall file with the Tax Commission an application for an exemption permit, setting forth such information as the Tax Commission may require. The application shall be
signed by the owner of the business or representative of the business entity and as a natural person, and, in the case of a corporation, as a legally constituted officer thereof.
C. Each manufacturer exemption permit issued shall be valid for a
period of three (3) years from the date of issuance. If a manufacturer applying for a manufacturer exemption permit is already the holder of a manufacturer’s sales tax permit issued under Section 1364 of Title 68 of the Okla-
Vol. 77 — No. 19 — 7/15/2006
homa Statutes at the time of initial application, the manufacturer exemption permit shall be issued with an expiration date which corresponds with
the expiration date of the manufacturer’s sales tax permit. Thereafter, the
Tax Commission shall issue the exemption permits at the same time of
issuance or renewal of the manufacturer’s sales tax permit issued under
Section 1364 of Title 68 of the Oklahoma Statutes.
D. The Tax Commission shall honor all manufacturer’s limited exemption certificates issued prior to the effective date of this act. However, holders of such certificates shall apply for a manufacturer exemption permit
pursuant to the provisions of this section at the same time they apply for
issuance or renewal of a manufacturer’s sales tax permit.
3. See also State ex rel. Oklahoma Tax Comm’n v. Emery, 1982 OK CIV APP
13, 645 P.2d 1048, 1051 (“[L]aches and estoppel do not apply against the
state acting in its sovereign capacity because of mistakes or errors of its
employees. [citation omitted.] The power of taxation is an inherent and
essential attribute of sovereignty.”).
2006 OK CIV APP 69
SOUTHERN OKLAHOMA RESOURCE
CENTER and COMPSOURCE OKLAHOMA,
Petitioners, v. CHARLENE SPARKS and the
WORKERS’
COMPENSATION COURT, Respondents.
No. 102,844. May 5, 2006
PROCEEDING TO REVIEW AN ORDER OF A
THREE-JUDGE PANEL OF THE WORKERS'
COMPENSATION COURT
SUSTAINED
Michael G. Coker, OLDFIELD, COKER &
GRAVES, Oklahoma City, Oklahoma, for Petitioners,
John Sprowls, Pauls Valley, Oklahoma, for
Respondents.
OPINION
ADAMS, Judge:
¶1 In 1994, Charlene Sparks (Claimant) suffered
a job-related injury to her right hand and was
adjudicated with 10.5% permanent partial disability (PPD) to the whole body. In 1995, Claimant
was hired as a direct care specialist with Southern
Oklahoma Resource Center (Employer), and in
1999, she suffered a low back injury which was
adjudicated at 4% PPD to the whole body. On
June 12, 2001, Claimant, who was still working for
Employer, sustained a second low back injury. For
this last injury, Claimant was adjudicated at 17%
PPD to the whole body lumbar spine over and
above the pre-existing 10.5% whole body. Based
upon the combination of her 2001 back injury
with her 1999 and 1994 disabilities, Claimant initiated the instant proceedings on September 16,
2003, seeking permanent total disability (PTD).1
¶2 After the February 22, 2005 hearing, a Workers’ Compensation Court trial judge filed an order
on March 9, 2005, finding in paragraph 1 that at
the time of her 2001 injury, Claimant was a “previously physically impaired person” based on her
prior disabilities, and in paragraph 2, that she had
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2061
sustained 17% PPD to the back and 14.5% PPD to
the body as a whole from her latest injury and
previous impairment, respectively. He further
found in paragraphs 3-5 that as a result of the
combinable injuries, Claimant was not permanently totally disabled but that she had sustained
“a 10% whole man material increase” for a total of
41.5% PPD to the body as a whole. Both Claimant
and Employer filed en banc appeals.
¶3 A three-judge panel reviewed the record,
found the March 9, 2005 order entered “was contrary to law AND against the clear weight of the
evidence,” vacated that order, and after adopting
the trial court’s paragraphs 1 and 2, found, in pertinent part of its paragraph 3:
THAT due to [Claimant’s] most recent
injury on JUNE 12, 2001, in combination with
all prior injuries and the material increase
resulting therefrom, the claimant is now PERMANENTLY AND TOTALLY DISABLED as
defined by Title 85 §3(17), and is due compensation at the rate of $237.00 per week from
the date of this order and continuing for a
period of fifteen (15) years . . .
From this order, filed November 17, 2005,
Employer filed its Petition for Review.
¶4 Employer contends that because Claimant’s
non-adjudicated, non-work-related health conditions — diabetes and heart disease (congestive
heart failure) — were factors in prohibiting surgical treatment for her last injury, those conditions
are factors in the disability associated with the
injury for which the trial court was required to
make specific findings, i.e., whether her diabetes
and heart disease contributed to her disability.
¶5 Our review of the record confirms
Claimant’s position that there is no evidence that
her pre-existing conditions resulted in any disability, and nothing in the record indicates that
her pre-existing conditions were considered by
the medical experts in rendering their opinions
that she is PTD.2 In fact, the court-appointed Independent Medical Examiner testified that neither
her diabetes nor her heart disease (congestive
heart failure) were disabling and that it was his
opinion that she was PTD solely due to the combination of her adjudicated injuries to her hand
and back. Employer had the burden of proving
both the existence and extent of any pre-existing
disability. See Lummus Construction v. Vancourt,
1992 OK CIV APP 113, 838 P.2d 43. Because there
is testimony in the record from which the threejudge panel could reasonably conclude that
Claimant’s diabetes and heart disease did not
result in any disability or in any way contribute to
2062
her level of disability, the order finding Claimant
to be PTD is supported by competent evidence
and must be sustained. Parks v. Norman Municipal
Hospital, 1984 OK 53, 684 P.2d 548.
¶6 Employer next argues that the three-judge
panel’s award of benefits beginning with the date
of filing of their order is in direct conflict with 85
O.S.2001 §22(12), which provides that “[n]o payments on any permanent impairment order shall
start until payments on any pre-existing permanent impairment orders have been completed.”
More specifically, Employer asserts that (1) the
Order on Appeal failed to address the trial court’s
paragraph 6 finding that payment of its order was
not to commence until payment of the pre-existing Order was complete, and (2) if the PTD benefits award is affirmed, that “the payment of said
award should date from the completion of payment on the prior award or upon the date of the
Order on Appeal (November 17, 2005) whichever
is later.”
¶7 Employer’s first argument ignores the fact
that the three-judge panel vacated the trial court’s
order thereby eliminating any need to specifically
address that issue. Its second argument ignores
the three-judge panel’s express finding that
Claimant is PTD based on a combination of her
injuries, made pursuant to 85 O.S.2001 §172(B),
which provides “for actions in which the subsequent injury occurred on or after June 1, 2000, if
such combined disabilities constitute permanent
total disability . . . [s]uch awards shall be paid from
the date the court order finding the claimant to be
permanently and totally disabled is filed.”
(Emphasis added.)
¶8 The apparent conflict between §22(12) and
§172(B)(2) does not appear to have been
addressed by any published opinion, and we
apply the general rules for statutory construction.
Under those precepts, a legal question such as
that presented here is reviewed by the appellate
court de novo. Samman v. Multiple Injury Trust
Fund, 2001 OK 71, 33 P.3d 302.
¶9 The primary goal of statutory construction is
to give effect to the intent of the Legislature.
TRW/Reda Pump v. Brewington, 1992 OK 31, 829
P.2d 15. It is presumed that the Legislature has
expressed its intent in a statute and that it intended what it expressed. TXO Production Corp. v.
Oklahoma Corporation Commission, 1992 OK 39, 829
P.2d 964. When legislative intent is expressed
clearly in the statute, there is no room for further
judicial inquiry, and the starting point of analysis
is the plain and ordinary significance of the language used. George E. Failing Co. v. Watkins, 2000
OK 76, 14 P.3d 52. It is a settled rule when con-
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Vol. 77 — No. 19 — 7/15/2006
struing seemingly conflicting statutes that a specific statute controls over a more general one and
that the most recent enactment controls over an
earlier one. Taylor v. Special Indemnity Fund, 1990
OK 106, 804 P.2d 431; Duncan v. Oklahoma Department of Corrections, 2004 OK 58, 95 P.3d 1076.
APPEAL FROM THE DISTRICT COURT OF
OKLAHOMA COUNTY, OKLAHOMA
¶10 Paragraph 12 was added to §22 by the Legislature in 1986 and that body is presumed to
know of its existence when the terms of §172(B)(2)
were enacted in 2000. At the time of Claimant’s
most recent injury, §172(B)(2) specifically applied
to a claimant whose “subsequent injury” occurred
after June 1, 2000, and required the PTD award to
be “paid” from the date the PTD order is filed.3
“Paid” means “paid,” and its meaning is plain
and unambiguous. It is the duty of the courts to
give effect to the acts of the Legislature and to not
amend, repeal, rewrite, ignore or circumvent
through construction the clear words written. City
of Tulsa v. Public Employees Relations Board, 1998
OK 92, 967 P.2d 1214.
Joan A. Renegar, KORNFELD, FRANKLIN,
RENEGAR & RANDALL, Edmond, Oklahoma,
for Plaintiff/Appellant,
¶11 Section 172(B)(2) specifically addresses the
payment of PTD awards like the one awarded to
Claimant, and it controls over the more general
provisions of §22(12). The panel properly required
payment of the PTD award to commence with the
date its order was filed.
¶12 Under Parks v. Norman Municipal Hospital,
1984 OK 53, 684 P.2d 548, we may set aside an
order of the Workers’ Compensation Court only if
it is contrary to law or is unsupported by any
competent evidence. Because Employer has not
so demonstrated, the order is sustained.
SUSTAINED
BUETTNER, C.J., and MITCHELL, P.J., concur.
1. Claimant announced at the hearing held on February 22, 2005 that
she was also seeking, in the alternative, a material increase in PPD.
2. We note for the record that Employer never refers to Claimant’s diabetes and heart disease as “pre-existing.”
3. In a 2005 amendment, the Legislature limited the provisions of
§172(B)(2) to subsequent injuries which “occurred on or after June 1, 2000,
but before November 1, 2005.” This same amendment created §172(B)(3)
which applied to subsequent injuries which “occurred on or after November 1, 2005.” Section 172(B)(3) places liability for the difference between
“the degree of percent of disability which would have resulted from the
subsequent injury if there had been preexisting impairment” and PTD on
the Multiple Injury Trust Fund (the Fund). The “paid” language does not
appear in §172(B)(3), but it provides that PTD awards from the Fund shall
“accrue” from the date of filing of the PTD order. 85 O.S.Supp.2005 §172(B).
2006 OK CIV APP 70
H & EN, INC., Plaintiff/Appellant, v.
OKLAHOMA DEPARTMENT OF LABOR,
Defendant/Appellee.
No. 103,126. May 5, 2006
Vol. 77 — No. 19 — 7/15/2006
HONORABLE DANIEL L. OWENS, TRIAL
JUDGE
AFFIRMED
Don A. Schooler, OKLAHOMA DEPARTMENT
OF LABOR, Oklahoma City, Oklahoma, for
Defendant/Appellee.
CAROL M. HANSEN, JUDGE:
¶1 Appellant, H & EN, Inc. (Employer), appeals
from the trial court’s order granting Appellee,
Oklahoma Department of Labor’s (Department),
Motion to Dismiss for Lack of Subject Matter Jurisdiction.1 We hold the trial court properly granted
Department’s motion to dismiss because Employer failed to include its wage claimant employee as
a party to the action. We affirm.
¶2 The record reflects that Virginia R. Milner
(Employee), filed a Wage Claim with Department
seeking wages she alleged were due and unpaid
by Employer. Employer denied that Employee
was in its employ. Department determined
Employee was due wages of $36,200.55, and, pursuant to 40 O.S. 2001 §165.3(B), was entitled to liquidated damages in an equal amount. Employer
disputed the determination and made a timely
request for an administrative hearing.
¶3 The matter was heard by an Administrative
Law Judge (ALJ), as designee of the Commissioner of Labor. After the hearing, which included
introduction of documentary evidence, testimony
by Employee, and testimony by others on behalf
of Employer, the ALJ concluded Employee was
entitled to wages of $7,395.60, with liquidated
damages of an equal amount. The ALJ also concluded, inter alia, that Employer and Employee
met the definition of those terms under 40 O.S.
2001 §165.1. The ALJ’s Final Agency Determination
awarded judgment against Employer consistent
with the foregoing conclusions of law.
¶4 Employer filed its Petition for Review in the
trial court, alleging that pursuant to 75 O.S. 2001
§318, which is part of the Oklahoma Administrative Procedures Act (the Act), it was entitled to
judicial review of Department’s determination as
a “final agency order.”2 Employer asked that it be
determined not liable for wages or mandatory liquidated damages to Employee. Employer named
Department as the only defendant in its Petition.
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2063
¶5 Department entered a special appearance in
the trial court, filing concurrently its Motion to Dismiss for Lack of Subject Matter Jurisdiction. Department argued subject matter jurisdiction was lacking over Employer’s Petition because [1] Employer failed to name Employee as a defendant, and
[2] Employee, “the real party in interest” was an
indispensable and necessary party under §318(C)
of the Act.
¶6 In its Response to Department’s motion to
dismiss, Employer asserted it had complied with
the statutory requirement of notice under §318(C)
because it had served Department and Employee
“was represented by [Department] during the
hearing regarding [Employee’s] wage claim.”
Employer further asserts only the “administrative
agency is a necessary party to a petition because it
is review of that agency’s determination that is
sought.”
¶7 The trial court granted Department’s motion
to dismiss. It found lack of subject matter jurisdiction over Employer’s §318 petition “due to the
absence herein of the 75 O.S. §318 indispensable
and necessary party, the real party in interest, i.e.,
the pro se wage claimant.” Employer appeals from
the trial court’s judgment. Generally, Employer
contends the trial court’s judgment should be
reversed because [a] Oklahoma courts do not
favor motions to dismiss, and [b] Employer complied with statutory requirements for notice. We
find no merit in either contention.
¶8 Employer’s contention that Oklahoma
courts do not favor motions to dismiss may in
some cases be true, but, as presented in Employer’s response to Department’s motion to dismiss,
this rule pertains to motions to dismiss for failure
to state a claim upon which relief can be granted,
not to cases where the court finds it lacks jurisdiction. Where jurisdiction is statutory, “the terms of
the statute must be complied with before a court
can acquire jurisdiction.” Edmondson v. Siegfried
Ins. Agcy, Inc., 1978 OK 45, 577 P.2d 72. If jurisdiction is lacking, the court has no discretion and the
question of whether motions to dismiss are
viewed with disfavor is irrelevant.
¶9 With respect to Employer’s contentions
regarding compliance with “notice” requirements
under §318(C), we are persuaded by the Court of
Civil Appeals reasoning in Transwestern Pub.,
L.L.C. v. Langdon, 2004 OK CIV APP 21, 84 P.3d
804. In Langdon, the Court was considering facts
similar to those now before us. There, in its petition for review by the district court from a wage
determination in favor of an employee, the
employer named only the employee as defendant.
Both the employee and the Department of Labor,
2064
the latter appearing specially, moved for dismissal for failure to join Department as a necessary party defendant. The trial court granted the
motion to dismiss and the employer appealed.
¶10 The Langdon Court, at 806, concluded
§318(C) implicitly requires that all those who are
entitled to be served copies of the petition be
made a party to the petition. Section 318(C) provides:
Copies of the petition shall be served upon
the agency and all other parties of record, ...
The court, in its discretion, may permit other
interested parties to intervene.
¶11 The Langdon Court held that joinder of
Department, and all other parties of record, was necessary for jurisdiction over a request for judicial
review of an agency order. While the facts in Langdon were reverse of the facts here, the result is the
same. All parties of record to the administrative
proceeding who have an interest in the judicial
review must be joined in the district court action.
Employer acknowledges Department is “a necessary party to a petition for review because it is
review of that agency’s determination that is
sought.” It is hard to conceive how Employee,
whose wage claim is dependent on the outcome,
could have a lesser interest in the judicial review.
¶12 The decision in Langdon is consistent with
that of the Supreme Court in Edmondson, supra. In
Edmondson, the appellant had sought judicial
review of a decision of the Board of Review of the
Oklahoma Employment Security Commission.
The appellant’s petition in district court had omitted the Board of Review as a defendant and the
district court granted the other defendant’s
demurrers to the petition. The appeal was from
the order dismissing the trial court petition.
¶13 The Edmondson Court, at 73, held:
The Oklahoma Employment Security Commission and the Board of Review of that
Commission, and any other parties to the proceedings before the Board of Review, are necessary parties and failure by a plaintiff seeking
judicial review of a decision by the Board of
Review to name necessary parties as defendants in a timely commenced proceeding in
the district court is jurisdictional. (Emphasis
added).
¶14 In the matter before us, Employee was a
party to the action before Department’s ALJ, with
valuable interests separate from those of Department, and was therefore a necessary party to
Employer’s Petition for Review in the trial court.
The trial court could not gain jurisdiction over
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Vol. 77 — No. 19 — 7/15/2006
Employer’s Petition unless all necessary parties
were joined. Edmondson, 577 P.2d at 74. The trial
court correctly found it did not have jurisdiction
over Employer’s Petition in the absence of
Employee being named as a defendant and dismissed the Petition.
¶15 Accordingly, the trial court’s order dismissing Employer’s Petition is AFFIRMED. Department’s motion to dismiss Employer’s Petition in
Error is DENIED.
BELL, P.J., and JOPLIN, J., concur.
1. The appeal is submitted without appellate briefing in accordance
with the accelerated procedure under Rule 1.36, Oklahoma Supreme Court
Rules, 12 O.S. Supp. 2003, Ch.15, App.
2. “Final administrative orders issued in a wage claim proceeding are
subject to appeal pursuant to the Administrative Procedures Act.” 40 O.S.
2001 §165.7(E).
2006 OK CIV APP 71
STATE OF OKLAHOMA, ex rel.
DEPARTMENT OF TRANSPORTATION,
Plaintiff/Appellant, v. ALLIED TOWER
COMPANY, INC., Defendant/Appellee, and
MERCHANTS BANK OF SOUTH HOUSTON,
a/k/a MERCHANTS PARK BANK, formerly
SOUTHERN STATE BANK, through GERRY E.
MONZINGO, Trustee, his substitutes or
successors; GERRY E. MONZINGO, TRUSTEE
MERCHANTS BANK - SOUTH HOUSTON;
and THE COUNTY TREASURER FOR CRAIG
COUNTY, Defendants.
No. 100,109, Consol. w/100,467.
January 17, 2006
APPEAL FROM THE DISTRICT COURT OF
CRAIG COUNTY, OKLAHOMA
HONORABLE GARY MAXEY, TRIAL JUDGE
AFFIRMED IN PART; REVERSED IN PART
AND REMANDED WITH DIRECTIONS
Jot Hartley, THE HARTLEY LAW FIRM, PLLC,
Vinita, Oklahoma, for Appellant,
Robert Alan Rush, LOGAN & LOWRY, LLP, Vinita, Oklahoma, for Appellee.
OPINION BY JOHN F. REIF, JUDGE:
¶1 Appeal No. 100,109 and No. 100,467 arise
from the same condemnation proceeding in
which the Oklahoma Department of Transportation (ODOT) acquired property from Allied
Tower Company, Inc. ODOT brought Appeal No.
100,109 alternatively seeking a new trial or remittitur. ODOT contends that the trial court erred by
admitting, over objection, incompetent evidence
of the value of a spooling machine that, in turn,
resulted in the jury returning a verdict that
Vol. 77 — No. 19 — 7/15/2006
exceeded the commissioners’ award by more than
10%. Allied brought Appeal No. 100,467 seeking
reversal of the trial court’s attorney fee award.
Allied contends that the trial court erred in basing
the fee on the Burk1 factors, rather than its contractual obligation to its attorneys. Because these
appeals involve judgments from the same case in
the district court, and judicial economy would be
served by their review and disposition together,
this court sua sponte consolidates these appeals for
decision by a single opinion to be filed in each
case. Supreme Court Rule 1.27(d), 12 O.S.2001, ch.
15, app. 1.
I.
¶2 Prior to the taking, Allied used the spooling
machine in making guy wires for the towers it
manufactured. The loss of the land taken by
ODOT prevented continued use of the spooling
machine. Allied built a new spooling facility and
included the cost of the new facility as one of its
costs to cure. However, the spooling machine in
question could not be moved to the new facility
due to the way it was affixed to the land. In effect,
it became unuseable salvage equipment.
¶3 The controversy over the value of the spooling machine arose in the course of testimony by
Allied’s expert witness. This witness, an engineer,
testified about the detrimental effect of the taking
on Allied’s operations and use of the remaining
land. This witness was allowed to give an opinion
about the salvage value of the unuseable spooling
machine over objection of counsel for ODOT. This
witness concluded the spooling machine had a
salvage value of about $2,500.
¶4 ODOT argues that this witness was not an
expert in appraising the value of property and
that his opinion lacked both a factual foundation
and methodology. ODOT points out that $2,500 is
more than 10% of the commissioners’ award, and
basically argues the jury must have considered
this amount in returning a verdict that exceeded
the commissioners’ award by more than 10%.
¶5 The chief problem with this reasoning is that
Allied did not seek to recover the value of the
spooling machine as an item of damage separate
from the cost to cure the loss of its use. The loss of
use of the spooling machine was reflected in the
cost of the new spooling facility.
¶6 It was perfectly clear that the spooling
machine itself was not taken and, in context, it is
much more probable that the jury subtracted the
salvage value of the spooling machine from
Allied’s cost to cure, rather than adding the salvage value to other damages the jury found Allied
had sustained. In either case, the effect of admitting this evidence is purely speculative in view of
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2065
the general verdict, and affords no basis to disturb
the judgment on the jury verdict.
II.
¶7 Under the jury verdict which we have left
undisturbed, Allied received an award that
“exceed[ed] the award of the court-appointed
commissioners by at least ten percent (10%)” and,
as such, Allied is entitled to be paid “such sum as
in the opinion of the court will reimburse such
owner for his reasonable attorney, appraisal and
engineering fees, actually incurred because of the
condemnation proceedings.” 27 O.S.2001 § 11(3).
Allied Tower contends that State ex rel. Department
of Transportation v. Norman Industrial Development
Corp., 2001 OK 72, ¶ 11, 41 P.3d 960, 964, interpreted section 11 to mean a landowner is entitled
to recover the attorney fee “for which the
landowner is contractually liable.”
¶8 The rationale for this contractual obligation
rule is that “landowners are constitutionally entitled to full compensation for property subjected to
the government’s eminent domain powers.” Id. at
¶ 17, 41 P.3d at 965 (footnote omitted). Such full
compensation means “full indemnification by just
or fair compensation [that places the owner] as
fully as possible in the same position as that [occupied]
before the government’s taking.” Oklahoma Turnpike
Auth. v. New Life Church, 1994 OK 9, ¶ 12, 870 P.2d
762, 766.
¶9 The New Life case, citing Root v. KAMO Elec.
Coop., Inc., 1985 OK 8, 699 P.2d 1883, observes that
“in condemnation proceedings a landowner’s
quest for an attorney’s fee . . . is measured by the
extent of the landowner’s obligation to its lawyer
unless, of course, the obligation is excessive.” The New
Life case further observes that courts will resolve
“any doubt as to the quantum of the fee [by]
look[ing] to the limits on reasonableness or excessiveness of the owner-incurred obligation.” New Life, 1985
OK 8, ¶ 11, 870 P.2d at 765.
¶10 The Norman Industrial Development case
interprets these pronouncements as directing a
court to undertake “two tasks . . . when considering the appropriate attorney fees to impose pursuant to . . . § 11.” 2001 OK 72, ¶ 12, 41 P.3d at 964.
The first task is “to determine the extent of the
landowner’s contractual obligation to its counsel,” while the second task is “to consider whether
the quantum of the fee obligation is reasonable.”
Id.
¶11 The Norman Industrial Development case
goes on to state that “the winning party’s lawyer
must . . . go forward with proof to establish all elements of the plea [for attorney fees],” but “a contract-based fee is governed primarily by the
2066
landowner’s valid obligation to the lawyer.” Id. at
¶ 13, 41 P.3d at 964. After counsel for the
landowner has produced evidence on the issues
of the contractual amount and its reasonableness,
the condemnor who challenges the lawyerlandowner fee contract “has the burden of
proving the obligation’s unconscionability or
unreasonableness.” Id.
¶12 In the case at hand, Allied’s counsel testified that Allied had a contract with his law firm to
pay “the higher of fifty percent of the difference
between the commissioners’ award and the
amount recovered at trial or our regular hourly
rate based upon our usual customary hourly
rates.” Counsel added, however, that “we specifically discussed with [Allied] that we anticipated
that we would be dealing strictly with a lodestar
rate times hour calculation.” The hourly rate
charged by counsel was $175 per hour and ODOT
stipulated this was a reasonable rate.
¶13 Allied’s counsel also testified concerning
the time and services he provided in representing
Allied. He also introduced two exhibits detailing
the time and services he provided. He stated
Allied was obligated to pay for the time and
services reflected in the exhibits.
¶14 Allied’s counsel further indicated that he
was “familiar with the factors that have been
identified by the Oklahoma Supreme Court for
determining reasonable attorney fees.” The factors that counsel addressed in his testimony
appear to be the Burk factors. At the outset of
counsel’s testimony, ODOT stipulated that counsel for Allied was “an expert attorney and a member of the bar and is competent to testify with
regard to his fees sought in this case.”
¶15 The first factor counsel addressed was
“time and labor required.” When asked if the time
records accurately reflect the time and
labor required in this case, counsel answered affirmatively.
¶16 The second factor counsel addressed concerned aspects in this case that made it unusually
difficult or time-consuming. Counsel testified that
(1) there were problems in scheduling due to the
number of other cases being handled by ODOT’s
counsel, (2) the tremendous reputation and abilities of ODOT’s counsel required more care to do
things that you might not have to do with a less
experienced opponent, such as special preparation to cross-examine ODOT’s expert, (3) a sizable
commissioners’ award and the special focus on
remainder damage as opposed to the value of
land taken, and (4) technical aspects of Allied’s
remainder damages, such as the spooling
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Vol. 77 — No. 19 — 7/15/2006
machine issue and delivery driveway relocation
to accommodate the turning radius of big trucks.
¶17 The third factor counsel addressed was that
the time and labor were performed by an attorney
with the requisite skill to perform the legal services. Counsel testified, in effect, that he had considerable experience in condemnation and did the
majority of the work for Allied. In his testimony to
sponsor the time record exhibits, counsel indicated that centralized control in one lawyer (himself)
was “the most cost effective way” and “a pretty
efficient way to deliver services.”
¶18 The next three factors counsel addressed
were whether representation of Allied precluded
other employment, whether a contingency fee
was involved, and whether there were special
time limitations. Counsel testified that none of
these factors affected the attorney fee obligation.
¶19 The seventh factor counsel addressed concerned the amount involved and the results
obtained. Allied’s counsel testified that ODOT
had requested the jury award between four and
five thousand dollars as just compensation, while
Allied’s evidence was in the neighborhood of thirty-one or thirty-two thousand. Counsel noted that
the jury verdict was $21,624 and was “toward our
end of the evidence as far as the result.”
¶20 The eighth factor counsel addressed concerned his experience, reputation and ability.
Counsel for ODOT agreed that this factor was
addressed by its prior stipulation.
¶21 The ninth factor counsel addressed concerned any undesirable aspects of the case. Counsel testified that the case was not generally undesirable, but again mentioned that he thought the
sizable commissioners’ award made the case very
difficult.
¶22 The tenth factor counsel addressed was the
length of the relationship between counsel’s law
firm and Allied. Counsel testified that he and the
law firm were not Allied’s general counsel but
had performed legal services for Allied over the
years.
¶23 The final factor counsel addressed concerned how the amount of the fee requested in
this case ($42,870.50) compared to other similar
cases. Counsel referred to cases cited in his application where fees between $59,000 and $77,000
had been awarded. He also related that the fee
application in the Allied case was “typical” and
“right in the range” of his own experience in condemnation matters he had tried. He identified
$35,000 to $45,000 as the range he was referring to
and felt this range was particularly appropriate
for “an industrial type of tract [with] remainder
Vol. 77 — No. 19 — 7/15/2006
[damage] issues like we had in this case.” When
asked on cross-examination whether 257 hours
was really a lot of time for a condemnation case
such as this, counsel for Allied responded “no,”
and again cited the “remainder issues” involved
in the case.
¶24 At the close of the evidence that Allied submitted to support its application for attorney fees,
counsel for ODOT argued that “I think 257 hours
on this condemnation case is excessive.” Counsel
for ODOT reminded the trial judge that he, the
judge, had tried this case and was familiar with
the details of the work. Counsel also cited case
authority declaring that attorney fees must bear
some reasonable relationship to the amount in
controversy and the results obtained, and propounded that a forty-five thousand dollar fee was
not reasonable in relation to a verdict of $21,624.
However, ODOT did not present any evidence to
demonstrate the contract “obligation’s unconscionability or unreasonableness.” Norman Industrial Development, 2001 OK 72, ¶ 13, 41 P.3d at 964.
¶25 The foregoing demonstrates that Allied carried its evidentiary burden and established a
prima facie case on the issues of (1) the extent of
the landowner’s contractual obligation to its
counsel and (2) the reasonableness of the quantum of the obligation. Thereafter, ODOT, as the
party challenging the amount of the fee obligation, had the burden of proving the obligation’s
unconscionability or unreasonableness. Although
its counsel capably and skillfully argued that the
contractual obligation was unreasonable and
excessive, ODOT did not produce evidence to
affirmatively demonstrate that the contractual
obligation was unreasonable or excessive, or
even to rebut Allied’s evidence supporting the
reasonableness of the contractual obligation.
¶26 In the order determining the attorney fee to
be awarded Allied, the trial court used the Burk
factors and found $21,000 to be a reasonable attorney fee. The trial court’s order reflects a thorough
and thoughtful analysis of the evidence in applying the Burk factors. However, the trial court’s
duty under the New Life case was not to determine
“a reasonable attorney fee,” but to determine the
reasonableness of the contract obligation between
Allied and its lawyer. As the New Life case points
out, the Burk standards apply in fashioning a reasonable fee “[w]here there is no contract or statute
establishing the amount of an attorney’s fee that is
due.” 1994 OK 9, n.11, 870 P.2d at 764.
¶27 The difference between determining a reasonable attorney fee and assessing the reasonableness of a contractual obligation lies in the allocation of burdens. In both cases, the party claiming
The Oklahoma Bar Journal
2067
the attorney fee carries an evidentiary burden on
the issue of reasonableness. However, in a case
involving the determination of a reasonable fee,
the party opposing the fee has no burden. In a
case involving a determination of the reasonableness of a contractual obligation, the party opposing the fee has the burden of proving the obligation’s unconscionability or unreasonableness.
¶28 In the case at hand, the error in the trial
court’s award of attorney’s fees to Allied is not the
trial court’s use of the Burk factors. Indeed, counsel for Allied addressed those factors in presenting his evidence to support the reasonableness of
the contractual obligation between Allied and his
law firm. The error in the trial court’s award lies
in the fact that it awarded an amount other than
Allied’s contractual obligation, in the absence of
any evidence from condemnor ODOT that the
contractual obligation was excessive or unreasonable. We again stress the clear pronouncement in
the New Life case that a condemnor has the burden
of showing the contract obligation is legally offensive or otherwise voidable for excessiveness.
III.
¶29 Another point that warrants discussion
concerns the factors to be addressed by landowners and condemnors in meeting their respective
burdens as discussed in the Norman Industrial
Development case and the New Life case. The Burk
factors are certainly the most widely known and
most frequently used factors when the reasonableness of an attorney fee is an issue. Their universal character is probably the reason that
Allied’s counsel addressed them in the evidence
he presented to support the reasonableness of
Allied’s contractual obligation to pay attorney
fees to his firm. Likewise, this is probably the reason that counsel for ODOT did not object to
Allied’s approach in addressing the reasonableness of the contractual obligation, as well as the
reason the trial court used the Burk factors to
determine “a reasonable fee.” The New Life case,
however, recognized a different set of factors for
addressing the reasonableness or excessiveness of
a landowner’s contractual obligation.
¶30 The court in New Life cited approvingly, in
footnote 21, some thirteen factors that have been
considered by appellate courts from other states
as guides in determining the reasonableness or
excessiveness of contract-based fees in eminent
domain proceedings. The factors are (1) the time
and labor required, (2) the fees customarily
charged, (3) the complexity of the proceeding, (4)
any contingency in the contract, (5) the lawyer’s
background and qualifications, (6) the lack of evidence that the fees were unreasonable, (7) sub2068
stantial benefit to landowners from lawyer’s
efforts, (8) the novelty and difficulty of issues
raised, (9) length of the trial, (10) the measure of
success achieved, (11) the weight of the lawyer’s
responsibility, (12) the serious nature of expropriating an individual’s property and the serious
responsibility on the lawyer to protect a client’s
rights in the case, and (13) factors contained in bar
disciplinary rules. Although New Life identified
these factors for evaluating the reasonableness or
excessiveness of the amount of attorney fees due
under a contingency fee contract, we see no reason why they would not also apply to assessing
the reasonableness or excessiveness of an amount
due under an hourly rate contract.
¶31 In deciding the New Life case, the Oklahoma
Supreme Court emphasized that “[a] contest over
the value of condemned property is an important
and serious matter which places considerable
responsibility on the landowner’s counsel.” 1994
OK 9, ¶ 15, 870 P.2d at 767-68. The Supreme Court
also emphasized the failure of the condemnor to
affirmatively demonstrate the counsel fee was
excessive. The Supreme Court suggested that
awarding the amount of the contractual obligation would be reasonable where “the jury verdict
in excess of 10% of the commissioner’s award . . .
was due in large measure to the diligent efforts
and skillful advocacy of landowner’s counsel.”
¶32 In the case at hand, the importance and
seriousness of the taking that placed considerable
responsibility on Allied’s counsel can be seen in
the wide disparity between the condemnor’s evidence of the damages, $4,000 to $5,000, versus
Allied’s evidence of $31,000 to $32,000 in damages. Additionally, Allied’s counsel related that
the success ODOT had experienced in prior cases,
due to the expert witness ODOT had used, posed
an additional difficulty and burden in advancing
Allied’s claim for full compensation. The extra
preparation that Allied’s counsel testified he
undertook to cross-examine ODOT’s expert certainly reflects diligent efforts and skillful advocacy to overcome this burden and to achieve compensation more in keeping with Allied’s evidence.
When the foregoing are considered in light of
ODOT’s failure to offer evidence to contest or
refute the evidence of the reasonableness of
Allied’s contractual obligation, this court must
conclude, as did the court in New Life, the contractual obligation was not unreasonable or excessive, and should have been the basis of the attorney fee awarded Allied.
IV.
¶33 In Appeal No. 100,109, we hold that the trial
court did not commit reversible error in admitting
The Oklahoma Bar Journal
Vol. 77 — No. 19 — 7/15/2006
the opinion testimony of Allied’s expert that valued the spooling machine at $2,500. Even assuming the expert was not qualified to give such a valuation opinion, and that the opinion lacked a factual foundation and proper methodology, this
court cannot determine whether this evidence
was considered by the jury in reaching their general verdict that Allied was due $21,624 as compensation for ODOT’s taking. In particular, nothing in the record indicates the jury knew the
amount of the commissioners’ award ($18,500) or
the consequences of awarding compensation to
Allied in excess of the commissioners’ award.
Finding no merit to ODOT’s challenge to the
judgment on the jury verdict, we affirm the judgment on the jury verdict.
¶34 In Appeal No. 100,467, we hold the trial
court committed reversible error in determining
and awarding “a reasonable attorney fee” under
27 O.S.2001 § 11. The award of attorney fees under
this statute is based on the contractual obligation
of the landowner to its attorney, unless such obligation is unreasonable or excessive. Allied carried
its burden of proof to demonstrate the amount of
the contractual obligation and its reasonableness,
but ODOT failed in its burden to prove the contractual obligation was unreasonable or excessive.
Therefore, the proper amount of the attorney fee
recoverable by Allied was the amount due on its
contractual obligation to its attorney. The order
awarding attorney fees to Allied is reversed and
this cause is remanded to the trial court with
directions to award Allied attorney fees in the
amount of $43,108.
¶35 As a final point, this court notes Allied has
requested attorney fees on appeal in its brief filed
in each appeal. We agree Allied is entitled to
recover such fees and grant the request. Oklahoma
Turnpike Auth. v. Asher, 1993 OK 136, 863 P.2d
1205; Oklahoma Turnpike Auth. v. Horn, 1993 OK
123, 861 P.2d 304. On remand, the trial court is further directed to determine the fee that landowner
incurred for the services of its counsel in these
appeals consistent with the views expressed herein.
¶36 IN APPEAL NO. 100,109, JUDGMENT ON
THE JURY VERDICT IS AFFIRMED. IN APPEAL
NO. 100,467, ORDER AWARDING ATTORNEY
FEE IS REVERSED AND CAUSE REMANDED
WITH DIRECTIONS TO AWARD ATTORNEY
FEE IN THE AMOUNT OF $43,108. ON
REMAND, TRIAL COURT SHALL ALSO
DETERMINE FEE FOR THE SERVICES OF
ALLIED’S ATTORNEY IN CONNECTION WITH
BOTH APPEALS CONSISTENT WITH THE
VIEWS EXPRESSED HEREIN.
WISEMAN, J. (sitting by designation), concurs,
and GABBARD, P.J., concurs in part and dissents
in part.
GABBARD, P.J., concurring in part and dissenting in part:
¶1 I concur in affirming the judgment in Appeal
No. 100,109. However, I dissent from the decision
to reverse the trial court’s award of attorney fees
in Appeal No. 100,467. The attorney fee requested
by Allied was excessive and was properly
reduced by the trial court. I would therefore
affirm its decision.
1. State ex rel. Burk v. City of Oklahoma City, 1979 OK 115, 598 P.2d 659.
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Vol. 77 — No. 19 — 7/15/2006
The Oklahoma Bar Journal
2069
GRANT APPLICATIONS AVAILABLE
OKLAHOMA INTEREST ON LAWYERS' TRUST ACCOUNTS (IOLTA) PROGRAM
2006 GRANT APPLICATIONS NOW AVAILABLE
The Oklahoma Bar Foundation (OBF) Grants and Awards Committee is now accepting
applications for 2006 grants to be awarded through the Oklahoma IOLTA Program. The
deadline for Application submission is Tuesday, July 18, 2006. Applications are accepted for
programs and projects that:
•
provide delivery of legal services to the poor;
•
promote quality legal education;
•
improve the administration of justice and promote such other programs for the
benefit of the public as are specifically approved by the Oklahoma Bar Foundation for
exclusively public purposes.
The 2005 IOLTA grants totaling $354,500 were approved by the Oklahoma Bar Foundation
Board of Trustees to:
■
■
■
Provide delivery of civil legal aid services to the poor and elderly throughout
Oklahoma. Grants totaling $200,000 were awarded to the consolidated statewide
organization, Legal Aid Services of Oklahoma, Inc. and $45,000 was awarded for
legal aid services for children and other victims of domestic abuse to Oklahoma
Lawyers For Children, Inc., Tulsa Lawyers For Children, Inc. and the Oklahoma
Indian Legal Services, Inc. Domestic Violence Prevention Program.
Fund education programs in the total amount of $59,500. Awards were made to the
Oklahoma Bar Association Law-Related Education Teacher’s Workshop Program,
grades K through 12; the Oklahoma High School Mock Trial Program sponsored by
the Oklahoma Bar Association Young Lawyers Division; the statewide YMCA
Oklahoma Youth & Government Program; and $7,500 was reserved for the 2006
National High School Mock Trial Competition to be held in Oklahoma.
Improve the administration of justice through $50,000 in grants awarded to the
statewide Oklahoma Access To Justice Commission.
IOLTA grant applications must be postmarked or delivered no later than Tuesday, July 18,
2006 to be considered. Packets may be downloaded from the Web Page at
www.okbar.org/obf or application packets may be requested by writing or calling:
OKLAHOMA BAR FOUNDATION
IOLTA PROGRAM
P O Box 53036
Oklahoma City OK 73152-3036
(405) 416-7070 or (800) 522-8065
E-mail: [email protected]
2070
The Oklahoma Bar Journal
Vol. 77 — No. 19 — 7/15/2006
BAR NEWS
Suspended Members
Nonpayment of 2006 Dues
2006 OK 51
SCBD No. 5204
June 26, 2006
ORDER OF
SUSPENSION
This matter comes on
before this Court for
consideration of the
Recommendation for
Suspension for Nonpayment of Dues submitted by the Board of
Governors of the Oklahoma Bar Association,
for suspension of members from membership
in the Association and
from the practice of law
in the State of Oklahoma, for failure to pay
their dues as members
of such Association for
the year 2006, as provided by the Rules Creating and Controlling
the Oklahoma Bar
Association.
The Court having
considered said Recommendation finds that
the members of the
Oklahoma Bar Association, named in the
attached Exhibit,
should be and are hereby suspended from
membership in the
Association and from
the practice of law in
the State of Oklahoma
for failure to pay membership dues for the
Vol. 77 — No. 19 — 7/15/2006
year 2006, as provided
by the Rules Creating
and Controlling the
Oklahoma Bar
Association.
Barry Knight Beasley
OBA No. 11220
4516 W Freeport Ave
Broken Arrow, OK
74012
DONE BY ORDER OF
THE SUPREME
COURT IN CONFERENCE ON THIS 26TH
DAY OF JUNE, 2006.
Ewing Mack Bedwell
OBA No. 12211
PO Box 1515
Durant, OK 74702
/s/ Joseph M. Watt
Chief Justice
ALL JUSTICES
CONCUR.
EXHIBIT A
Jack Thomas Agosta
OBA No. 159
2350 Westcreek Ln
Apt. 1209
Houston, TX
77027-4313
Anna M. Aragon
OBA No. 12197
1618 7th St
Las Vegas, NM
87701-4920
Frederick Bawden
Aurin
OBA No. 379
28700 Valley View Rd
Steamboat Springs, CO
80487
John Joseph Baker
OBA No. 15181
10655 NE 4th, #320
Bellevue, WA 98004
Michael Dean Billings
OBA No. 17912
200 N. Harvey, Ste 1700
Oklahoma City, OK
73102
Glen Joseph Blake
OBA No. 18655
PO Box 50001
Tulsa, OK 74150-0001
Melvin C. Bloomfield
OBA No. 892
6144 S. New Haven
Ave.
Tulsa, OK 74136
John Knox Bounds
OBA No. 993
PO Box 787
1011 E. Jefferson
Hugo, OK 74743-0787
Michael Francis
Bradican
OBA No. 16622
4860 28th St. S #C2
Arlington, VA 222061369
Mary Leigh
Harris Brown
OBA No. 12323
1005 N. Madison
Republic, WA 99166
The Oklahoma Bar Journal
Sheryn Lee Anne
Bruehl
OBA No. 15490
4641 N. Marlborough
Drive
Whitefish Bay, WI 53211
Tiffani Burkholder
OBA No. 18022
23 Lakes Drive
Midland, TX 79705
Stephen Gregory
Butler
OBA No. 20640
PO Box 2702
Norman, OK 73070
Colleen Fitzgerald
Cable
OBA No. 16495
50 California St, 19th Fl.
San Francisco, CA
94111-4624
Christi Ann Chapman
OBA No. 18545
1429 W Catfishbay
Kingston, OK 73439
Karin Johnson
Chatfield
OBA No. 11256
1374 S. Vine St.
Denver, CO 80210
Debra Jean Coffey
OBA No. 18995
10220 E. 112th St. S.
Bixby, OK 74008
M. Allen Core
OBA No. 12617
PO Box 35751
Tulsa, OK 74153
2071
James W. Demik
OBA No. 2288
Ste 250
8001 LBJ Freeway
Dallas, TX 75251
Frank A. Gregory
OBA No. 3594
3825 NW 28th St, Ste E
Oklahoma City, OK
73107
James A. Ikard
OBA No. 4540
PO Box 20365
Oklahoma City, OK
73156-0365
Michael John
Dermody
OBA No. 16640
1113 Willow Lane
Liberty, MO 64068-4355
Katrina Grider
OBA No. 11602
14227 Prospect Point
Dr.
Cypress, TX 77429
Paula Ann Jackson
OBA No. 12349
2416 S. Saint Louis Ave.
Tulsa, OK 74114-2720
James Scott Dilbeck
OBA No. 20192
2807 Classen Blvd.
Oklahoma City, OK
73106
Donna Michelle Guion
OBA No. 20575
4614 Branchview Drive
Arlington, TX 76017
Joseph Patrick Dowd
OBA No. 12271
880 Lee St., Ste 100
Des Plaines, IL 60016
Rodney Helder
Dusinberre
OBA No. 17611
808 Villa Cir
Boynton Beach, FL
33435
Nancy Findeiss
OBA No. 2910
Court Of Appeals
1915 N Stiles Ste 357
Oklahoma City, OK
73105
Gary Bruce Fraley
OBA No. 19460
8711 S. Pittsburg Ave.
Tulsa, OK 74137
James Jones Fuqua
OBA No. 13502
Lazy U Ranch
683 Lazy U Ranch Road
Quanah, TX 79252-8076
Terry Elden Gish
OBA No. 17634
Ste 6045
8500 N. Stemmons
Freeway
Dallas, TX 75247
Brian Henry Grabill
OBA No. 19390
2250 E 73rd St Ste 600
Tulsa, OK 74136
2072
Linda Ann Hall
OBA No. 3727
1425 W Virgin St.
Tulsa, OK 74127-2713
Michael K. Harrah
OBA No. 3880
6301 Gaelic Glen Dr
Oklahoma City, OK
73142
Kimberly Ann Hart
OBA No. 19474
611 K Street NE
Washington, DC 200023529
Russell Wayne
Hasenbank
OBA No. 18280
101 W 4th Street
Liberal, KS 67901-3224
Clifford Eugene
Heckert
OBA No. 19332
5005 Malcom Rd
Lawton, OK 73501
Charles L. Henry
OBA No. 16845
527 N.W. 23rd
Suite 150
Oklahoma City, OK
73103
Fausto Hernandez
OBA No. 14422
3772 E. Timberline Rd.
Gilbert, AZ 85297
Jacklynn Grace
Hoplight
OBA No. 18944
6530 N. 74th W. Ave.
Tulsa, OK 74126
Ronald Lee Johnson
OBA No. 4721
PO Box 5295
Ardmore, OK 73403
Michael E. Karney
OBA No. 12358
140 Chambord Dr
Maumelle, AR 72113
Ronald Christopher
Kaufman
OBA No. 17657
1639 South Carson Ave.
Tulsa, OK 74119
Balmohan G. Kelkar
OBA No. 13994
3528 E. 104th St.
Tulsa, OK 74137
Kameron Dale Kelly
OBA No. 18408
2405 Grand Blvd., Ste
400
Kansas City, MO 64108
Karan Lee Krna
OBA No. 18218
8100 Mountain Rd NE
Suite 200
Albuquerque, NM
87110
Richard John Lehrter
OBA No. 15618
UMB Financial - UMB
Bank
1437 S Boulder Ave 1st
Fl
Tulsa, OK 74119
Charles R. Lucus
OBA No. 13998
3714 Ridge Rd.
New Bloomfield, MO
65063
Terry Paul Malloy
OBA No. 5648
5525 E 51st St, Ste 150
Tulsa, OK 74135
Howard Steven Miller
OBA No. 6210
6205 E 100th St
PO Box 55424
Tulsa, OK 74155-1424
Richard E. Minshall
OBA No. 6252
320 S. Boston, Ste 825
Tulsa, OK 74103
Patricia Louise Kern
OBA No. 14552
PO Box 1682
Oklahoma City, OK
73101
Joseph Anthony
Murphy
OBA No. 10105
48 SE Osceola St.
Stuart, FL 34994
Barbara Anne
Ketring-Beuch
OBA No. 17211
Ste I
201 W Broadway
North Little Rock, AR
72114
J. Edward Oliver
OBA No. 6768
217 N. Harvey, #107
Oklahoma City, OK
73102
James Lawrence
Knight
OBA No. 14762
2736 NW 111th
Oklahoma City, OK
73120
The Oklahoma Bar Journal
Laura Maureen
Parmele
OBA No. 10920
PO Box 702214
Tulsa, OK 74170
Clinton Noel Patterson
OBA No. 19689
4613 Cara Lee Lane
Bartlesville, OK 74006
John F. Percival
OBA No. 7038
4124 Northwich
Norman, OK 73072
Vol. 77 — No. 19 — 7/15/2006
Franklin Gregory Pesnell
OBA No. 18806
6921 N. Blue Ridge Rd.
Edmond, OK 73034-9064
John David Schacht
OBA No. 19367
1265 Lakeside Dr
East Lansing, MI 48823-2426
George Van Wagner
OBA No. 9197
2709 Portofino Pl.
Edmond, OK 73034
Jason Craig Pitcock
OBA No. 19911
5718 S Birmingham Ave
Tulsa, OK 74105
Jeffery Joseph Sheridan
OBA No. 12476
PO Box 224
Leonard, OK 74043-0224
Steven W. Vincent
OBA No. 9237
403 S. Cheyenne Ave.
Tulsa, OK 74103
Jeffrey Kim Reeds
OBA No. 10117
202 Cedar Ln SE #7
Vienna, VA 22180
Leona Irene Shoffit
OBA No. 19570
3248 NW 42nd St.
Oklahoma City, OK 73112
Stephen Elliot Reiter
OBA No. 11484
PO Box 80278
San Diego, CA 92138-0278
Dean Michael Solberg
OBA No. 12490
Ste 100-B
5711 E 71st St
Tulsa, OK 74136
Johann Michael Viscosi
OBA No. 9240
Ste. 11C
5 NW 16th St.
Lawton, OK 73507-6459
Donald Lee Ritter
OBA No. 7603
#207
425 1/2 SW 44th Street
Oklahoma City, OK 73109
Amber Lee Wade
OBA No. 19248
819 Woodmere Creek Loop
Vestavia Hills, AL 35226
James W. Spradling II
OBA No. 10676
5616 Lake Side Drive
Bossier City, LA 71111
Teresa Lee Wagner
OBA No. 13935
544 Stahlman Ave.
Destin, FL 32541-1730
Charles Everett Robinson
OBA No. 12161
PO Box 4533
Rocky Mount, NC 27803
Elizabeth Ann Srp
OBA No. 19341
616 Third Ave.
Camanche, IA 52730
Barbara Womack Webb
OBA No. 10157
224 South Martket St.
Benton, AR 72105
Gary Howard Roden
OBA No. 12457
307 Colony Dr
Norman, OK 73072
Randy David St. Onge
OBA No. 18231
9642 Mountain Daisy Way
Highlands Ranch, CO 80129
Evan C. Ruff
OBA No. 7819
3213 Box H Rd.
Crowley, TX 76036-9729
Michael E. Stubblefield
OBA No. 12507
2742 W Babcock Avenue
Visalia, CA 93291-3902
Richard Lee Weldon
OBA No. 9463
PO Box 60741
Oklahoma City, OK
73146-0741
Patrick Joseph Sacco
OBA No. 18986
20 Hanson St. , Apt 3
Boston, MA 02118
Donald Dewayne Thompson
OBA No. 8957
222 E Dewey
Sapulpa, OK 74066
Brett Dean Sanger
OBA No. 14850
803 Robert S. Kerr Ave.
Oklahoma City, OK 73106
Craig R. Tweedy
OBA No. 9145
202 E. Dewey, Ste 202
Edmond, OK 73034
Vol. 77 — No. 19 — 7/15/2006
The Oklahoma Bar Journal
Andrew Trevor Wheeler
OBA No. 19013
2637 S. Boston Pl.
Tulsa, OK 74114
Andrew Eual Wood
OBA No. 9837
3020 Shadybrook Dr.
Midwest City, OK 73110
Margaret M. Zarbano
OBA No. 10166
1941 S 42nd St Ste 500
Omaha, NE 68105
2073
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EDMOND, OK 73013
(405) 229-7070
[email protected]
Wednesday, July 19, 4 p.m.
Tulsa County Bar Association
1446 South Boston, Tulsa
s
g
n
i
r
a
e
H
c
i
l
b
u
P
A
B
O
on Changes to the
Oklahoma Rules
of Professional
Conduct
2074
Tuesday, July 25, 10 a.m.
Custer County Courthouse
603 B Street, Courtroom #1, Arapaho
Tuesday, August 15, 3 p.m.
Oklahoma Bar Center
1901 N. Lincoln Blvd., Oklahoma City
An OBA Rules of Professional Conduct Committee has
engaged in a comprehensive review of the Oklahoma Rules of
Professional Conduct. This project was prompted by extensive
updates to the ABA’s Model Rules of Professional Conduct.
The committee has adopted and recommended changes to
Oklahoma’s current rules. View the proposed rules at
www.okbar.org/ethics/OPRC.htm.
OBA members are invited to attend and comment on the proposed changes at any of three public hearings listed above.
Members may also submit comments via e-mail to
[email protected] or in writing to the OBA, P.O. Box 53036,
Oklahoma City, OK 73152-3036.
Following the public hearings, recommended changes will be
submitted to the House of Delegates with final approval the
province of the Oklahoma Supreme Court.
The Oklahoma Bar Journal
Vol. 77 — No. 19 — 7/15/2006
BAR NEWS
Suspended Members
Noncompliance with Mandatory Continuing Legal Education
Requirements for the Year 2005
2006 OK 52
SCBD No. 5205
June 26, 2006
ORDER OF
SUSPENSION
This matter comes on
before this Court for
consideration of the
Recommendation for
Suspension submitted
by the Board of Governors of the Oklahoma
Bar Association, for suspension of members
from membership in
the Association and
from the practice of law
in the State of Oklahoma, as provided by
the Rules of the
Supreme Court for
Mandatory Continuing
Legal Education for
failure to comply with
such rules for the year
2005.
And the Court, having considered said
Recommendation, finds
that each of the members of the Oklahoma
Bar Association named
on the attached Exhibit,
should be and is hereby
suspended from membership in the Association and from the practice of law in the State
of Oklahoma, as provided by the Rules of
the Supreme Court for
Mandatory Continuing
Legal Education for
Vol. 77 — No. 19 — 7/15/2006
failure to comply with
such rules for the year
2005.
DONE BY ORDER OF
THE SUPREME
COURT IN CONFERENCE ON THIS 26TH
DAY OF JUNE, 2006.
/s/ Joseph M. Watt
Chief Justice
ALL JUSTICES
CONCUR.
EXHIBIT A
Anna M. Aragon
OBA No. 12197
1618 7th St
Las Vegas, NM
87701-4920
Frederick Bawden
Aurin
OBA No. 379
28700 Valley View Rd
Steamboat Springs, CO
80487
John Joseph Baker
OBA No. 15181
10655 Ne 4th, #320
Bellevue, WA 98004
Barry Knight Beasley
OBA No. 11220
4516 W Freeport Ave
Broken Arrow, OK
74012
Glen Joseph Blake
OBA No. 18655
PO Box 50001
Tulsa, OK 74150-0001
John Knox Bounds
OBA No. 993
PO Box 787
1011 E. Jefferson
Hugo, OK 74743-0787
Thomas Mason
Furlow
OBA No. 20383
9311 San Pedro # 900
San Antonio, TX 78216
Christi Ann Chapman
OBA No. 18545
1429 W Catfishbay
Kingston, OK 73439
Brian Henry Grabill
OBA No. 19390
2250 E 73rd St Ste 600
Tulsa, OK 74136
Robert Brent Clarke
OBA No. 19433
3500 S Milam
Amarillo, TX 79109
Michael K. Harrah
OBA No. 3880
6301 Gaelic Glen Dr
Oklahoma City, OK
73142
Debra Jean Coffey
OBA No. 18995
10220 E. 112th St. S.
Bixby, OK 74008
James Scott Dilbeck
OBA No. 20192
2807 Classen Blvd
Oklahoma City, OK
73106
Harold G. Drain
OBA No. 18368
PO Box 1662
Oklahoma City, OK
73101
Nancy Findeiss
OBA No. 2910
Court Of Appeals
1915 N Stiles Ste 357
Oklahoma City, OK
73105
Christy Lynn Forth
OBA No. 19807
150 Filbert Ave Apt 4
Sausalito, CA 94965
Kimberly Ann Hart
OBA No. 19474
611 K Ste NE
Washington, DC 200023529
Clifford Eugene
Heckert
OBA No. 19332
5005 Malcom Rd
Lawton, OK 73501
Fausto Hernandez
OBA No. 14422
3772 E. Timberline Rd.
Gilbert, AZ 85297
Jacklynn Grace
Hoplight
OBA No. 18944
6530 N. 74th W. Ave.
Tulsa, OK 74126
Ronald Lee Johnson
OBA No. 4721
PO Box 5295
Ardmore, OK 73403
Larry Joe Freeman
OBA No. 16496
316 N Broadway, Ste B
Shawnee, OK 74801
The Oklahoma Bar Journal
2075
Phyllis Stevenson
Jones
OBA No. 4791
4400 Hemingway
Drive #173
Oklahoma City, OK
73118
Michael E. Karney
OBA No. 12358
140 Chambord Dr
Maumelle, AR 72113
Barbara Anne
Ketring-Beuch
OBA No. 17211
Ste I
201 W Broadway
North Little Rock, AR
72114
Richard John Lehrter
OBA No. 15618
UMB Financial — UMB
Bank
1437 S Boulder Ave 1st
Fl
Tulsa, OK 74119
Terry Paul Malloy
OBA No. 5648
5525 E 51st St, Ste 150
Tulsa, OK 74135
Howard Steven Miller
OBA No. 6210
6205 E 100th St
PO Box 55424
Tulsa, OK 74155-1424
David P. Rowland
OBA No. 7795
PO Box 1436
Bartlesville, OK 740051436
Laura Maureen
Parmele
OBA No. 10920
PO Box 702214
Tulsa, OK 74170
John David Schacht
OBA No. 19367
1265 Lakeside Dr
East Lansing, MI 488232426
Clinton Noel Patterson
OBA No. 19689
4613 Cara Lee Lane
Bartlesville, OK 74006
Jerry Lee Smith
OBA No. 8366
PO Box 14211
Tulsa, OK 74159-1211
John F. Percival
OBA No. 7038
4124 Northwich
Norman, OK 73072
Dean Michael Solberg
OBA No. 12490
Ste 100-B
5711 E 71st St
Tulsa, OK 74136
Jason Craig Pitcock
OBA No. 19911
5718 S Birmingham Ave
Tulsa, OK 74105
Gary Howard Roden
OBA No. 12457
307 Colony Dr
Norman, OK 73072
Michael E. Stubblefield
OBA No. 12507
2742 W Babcock
Avenue
Visalia, CA 93291-3902
Donald Dewayne
Thompson
OBA No. 8957
Creek County
222 E Dewey
Sapulpa, OK 74066
Johann Michael
Viscosi
OBA No. 9240
Ste. 11C
5 NW 16th St.
Lawton, OK 73507-6459
Richard Lee Weldon
OBA No. 9463
PO Box 60741
Oklahoma City, OK
73146-0741
Stephanie Marie
Westhuis
OBA No. 19595
5215 E 71st St Ste 1000
Tulsa, OK 74136
John Matthew
Whitworth
OBA No. 18157
3902 78th Drive E.
Sarasota, FL 34243
Margaret M. Zarbano
OBA No. 10166
1941 S 42nd St Ste 500
Omaha, NE 68105
Stress.
Depression.
Addiction.
For help, call LifeFocus Counseling Services at
(405) 840-5252 or toll-free 1(866) 726-5252.
The OBA is now offering all bar members up to six hours of
free crisis counseling. It’s strictly confidential and available
24 hours a day.
More information about the program
can be found at www.okbar.org.
2076
The Oklahoma Bar Journal
Vol. 77 — No. 19 — 7/15/2006
Mandates Issued
Mike Schwinn and Karl Heyer, IV,
v. Dennis Stutes, George Crandlemire, Michael Root, Terraquest
Corporation.
THE SUPREME COURT
Tuesday, June 27, 2006
99,867
100,273
Muskogee Regional Medical Center v. Becky Jane Rayborn and
Kenneth Lee Rayborn.
Irma Jimenez, an individual and
d/b/a Romance Flowers & Gift
Shop v. Lynk System, Inc. and
Golden Eagle, L.L.C.
100,714
Jason James Martin v. Melissa
Marie Martin.
101,480
Kenneth G. M. Mather v. April W.
Mather.
101,657
101,742
103,319
In the Matter of the Death of Jesus
Olvera Chavez, Deceased. Krista
K. O’Neal v. D & H Utilities Construction, Inc., Commerce &
Industry Insurance Co., and the
Workers’ Compensation Court.
Bonnie Forcum v. Via Christi
Health System, Inc., a Kansas Corporation and Via Christi Oklahoma Regional Medical CenterPonca City, Inc. f/k/a St. Joseph
Regional Medical Center of Northern Oklahoma, Inc., an Oklahoma
Corporation.
In the Matter of Earlene McKnight: Vernal McKnight, Jr. v. District Court of Tulsa County, District Judge Gregory K. Frizzell.
Friday, July 7, 2006
99,050
T.M. Ingle and Judith R. Ingle v.
Lloyd Mitchell and Laverne
Mitchell.
100,230
Elsie Olson v. Antonio O’Choa.
101,825
David Anthony Huff v. City of
Midwest City and The Workers’
Compensation Court.
101,152
Michael C. Washington v. Ron
Ward, Lee Mann, Mike Mullins,
Doy Sennett, et al.
101,208
Raymond D. Hale and Lillian Hale
v. A. G. Insurance Company, an
Oklahoma Farm Bureau.
100,569
Galen Bridenstine and Glen
Bridenstine for themselves and all
other similarly situated v. KaiserFrancis Oil Company and
Anadarko Petroleum Corporation,
successor in interest to Union
Pacific and Gas Company, and
Questar Exploration and Production Company, fka Universal
Resources Corporation.
101,948
James Bennett v. City of Jenks.
102,030
In the Matter of the Guardianship
of Curtis McAfee, an incapacitated
person. Curtis McAfee v. Eugene
A. McAfee.
102,082
In Re the Marriage of: Sherri
Stalder v. Sterling Stalder.
101,750
In Re The Marriage of: Sonya
Renee Lawler v. Timmy Lawler.
102,200
Linda Disque-Wilkinson v. Ed
Wilkinson.
101,992
102,332
Todd Trice v. Jeff L. Burress, The
United Methodist Church —
Oklahoma Area and Wesley United Methodist Church of Shawnee.
Kaiser-Francis Oil Company v.
Anadarko Petroleum Corporation
and Questar Exploration and Production Company.
102,091
Southern Material Handling Co.
and Fire & Casualty Insurance
Company.
102,127
McKenzie A. Jones, individually
and as the Representative of the
Estate of Vertna Sneed Jones,
Deceased v. HCA Health Services
of Oklahoma, Inc., dba University
Health Partners; OU Medical Center; University of Oklahoma Med-
102,335
103,262
Terri Lynn Thompson v. Daniel
Thompson.
AOGR Hawaii, L.L.C., Bradley
Wagenaar, Richard Quinn, L.
Richard Fried, Jr., Fried Oil & Gas
Venture, L.L.C., Harry Huffaker,
Karen Huffacker, Victor Brandt,
Vol. 77 — No. 19 — 7/15/2006
The Oklahoma Bar Journal
2077
ical Center; Oklahoma Memorial
Hospital; and Everett Tower; Dr.
Ruchi S. Sachdev, Dr. Sousa and
Dr. William Aronson, of Autopsy
Service of the University of Oklahoma Science Center or Autopsy
Services of OU.
102,298
Daniel and Carole Burk, husband
and wife v. Sears Roebuck & Co.
and Ecowater Systems, Inc.
101,857
Mary Callihan v. James A. Callihan.
102,048
Mike Warren and Judy Warren,
husband and wife and Angie
Miller, natural mother and legal
custodian of Cameron Normore, a
minor child v. United States Specialty Sports Association.
102,173
Gerald C. SpyBuck, Jr., v. John
Thomas Pugh, Attorney at Law.
102,671
State of Oklahoma, ex rel., University of Oklahoma v. James R. Neal.
102,503
102,682
In the Matter of Estate of Raymond Wirt Leggett, Deceased,
Stacey Bolton, Personal Representative of the Estate of Carolyn
Morene Marion v. Gregory Wayne
Leggett, Personal Representative
of the Estate of Raymond Wirt
Leggett.
Floyd Robinson v. Carter County
District #1 and Association of
County Commissioners Group
#75083 and The Workers’ Compensation Court.
102,572
Morgan Well Service and National
American v. Danny Hickman and
The Workers’ Compensation
Court.
102,740
Sonya Joe Phillips now known as
Sonja Jo Smith v. Ronnie Joe
Phillips, Jr.
102,716
Oklahoma Department of Securities, ex rel., Irving L. Faught,
Administrator v. Marsha Schubert
an individual and dba Schubert &
Associates; et al.
103,139
Sand Express, Inc. v. Bradley S.
Jobe.
103,250
Stine Family Limited Partnership
v. Joanne D. Findahl, d/b/a Joe
Fin LLC and Tulsa National Bank,
Oklahoma Tax Commission and
Joe Fin LLC.
103,309
James Bonds v. Sammy’s Automotive, CompSource Oklahoma and
The Workers’ Compensation
Court.
Friday, July 7, 2006
100,414
Paul Joseph Lyons v. Marjorie
Anne Lyons.
100,663
Cross & Sons, Inc., an Oklahoma
Corporation v. The Community
State Bank and Oklahoma Banking Corporation.
100,830
Reijo S. Manttari and Ray Schoenfelder v. Willis Smith and Ariel
Group International, LLC formerly Ariel Group International, Inc.
101,361
In the Matter of the Estate of John
Moman Whitehorn, Jr. Restricted
Osage Indian, Deceased: Cloudy
Chantal Whitehorn, personal representative v. Scott Douglas
Whitehorn.
101,513
Jennifer Bisbee v. Donald Bisbee.
COURT OF CIVIL APPEALS
Tuesday, June 27, 2006
97,450
Eric Juan Ford #12745 v. Correctional Officer Lieutenant Van
Blaricom.
100,533
Susan Wayne Schiller v. Tom
David Schiller.
101,574
In the Matter of the Estate of Tibor
A. Biczo Deceased. Eric A. Biczo.
100,734
Larry Lynn and Pamela Lynn v.
Eric Troutt.
101,593
Tommy Allean v. Perry Allen
Trent.
101,550
Associate Wholesale Grocers Inc.
and CGU Insurance Company v.
Timothy D. Spicer, Associated
Wholesale Grocers and The Oklahoma Worker’ Compensation
Court.
101,673
Phillip H. Owen v. Karen D.
Owen.
101,786
Varick-Timothy Child Care, Inc. v.
Sonya Miles.
2078
The Oklahoma Bar Journal
Vol. 77 — No. 19 — 7/15/2006
101,793
Melanie Diann Treadwell v. Brian
Mark Treadwell.
101,941
Steve Reynolds v. Bennett Steel,
AIU Insurance Company and The
Workers’ Compensation Court.
102,197
Blue Bell, Inc. and Liberty Mutual
Insurance Co., v. Maggie M.
Speakman and The Workers’
Compensation Court.
102,215
Oklahoma State Bureau of Investigation and Compsource Oklahoma v. Tamar Blakley, Central
Oklahoma Telephone Co., National American Insurance Company
and The Workers’ Compensation
Court.
100,983
Citifinancial Mortgage Company,
Inc., (formerly known as Associates Home Equity Services, Inc.) v.
Janice A. Hensley-Hooker.
102,129
Doug Ishmael v. Stephen L.
Andrew and Stephen L. Andrew
& Associates, a professional corporation.
102,485
Robert Dean McCutcheon v. Britton, Ramsey and Gary, P.C. f/k/a
Britton, Gray, Ramsey and
McCutcheon, P.C.
Reggie Grant v. Loftis Furniture
Co., Inc., National American
Insurance Co. and The Workers’
Compensation Court.
102,761
Oklahoma Military Department
and Compsource Oklahoma v.
Richard A. Collins and The Workers’ Compensation Court.
Raymond Cervantes v. Key Energy Services, Inc., and The Workers’ Compensation Court and Liberty Mutual Fire Insurance.
102,865
Wanda Bailey and Carma Foster v.
Farmers Insurance Company, Inc.
102,168
102,169
Twenty-five years of protecting your assets,
growing your wealth and advising you for life
Vol. 77 — No. 19 — 7/15/2006
The Oklahoma Bar Journal
2079
OKLAHOMA INDIGENT
DEFENSE SYSTEM
To the actor it’s the
OSCAR®
Capital Counsel
The Oklahoma Indigent Defense System
(OIDS) has an opening for Capital Counsel position our Capital Trial Division, Norman office.
Salary commensurate with qualifications and
within agency salary schedule range. Excellent
benefits.
Any interested applicant should submit a letter
of interest and résumé to Angie Cole.
Angie L. Cole, AA/EEO Officer
Oklahoma Indigent Defense System
P.O. Box 926
Norman, OK 73070
OIDS is an Equal Opportunity Employer
OKLAHOMA INDIGENT
DEFENSE SYSTEM
To the Olympian it’s the
GOLD
To the singer it’s the
GRAMMY
To the lawyer it’s the
OBA AWARD
Defense Counsel
The Oklahoma Indigent Defense System
(OIDS) has an opening for a Defense Counsel
position in our Non-Capital Trial Division,
Clinton satellite office.
Salary commensurate with qualifications and
within agency salary schedule range. Excellent
benefits.
Now is the time to honor someone by
nominating them for an OBA Award.
Awards will be presented at the Annual
Meeting to be held Nov. 15-17, 2006 in
Tulsa.
Any interested applicant should submit a letter
of interest and résumé to Angie Cole.
Angie L. Cole, AA/EEO Officer
Oklahoma Indigent Defense System
P.O. Box 926
Norman, OK 73070
OIDS is an Equal Opportunity Employer
2080
Nomination deadline: August 3
More details on the nomination
process at www.okbar.org
The Oklahoma Bar Journal
Vol. 77 — No. 19 — 7/15/2006
CLASSIFIED ADS
SERVICES
SERVICES
MEDIATION SERVICES: Downtown Oklahoma City
attorneys with over 60 years combined litigation and
trial experience, who can evaluate both sides of a case.
Contact David H. Cole or John R. Hargrave to discuss
their services and arrange a mediation. (405) 272-0322.
OF COUNSEL LEGAL RESOURCES — SINCE 1992 —
Exclusive research & writing. Highest quality: trial
and appellate, state and federal, admitted and practiced
U.S. Supreme Court. Over 20 published opinions with
numerous reversals on certiorari. MaryGaye LeBoeuf
(405) 728-9925, [email protected]
TECHNOSECURE, INC. SOLVING TOMORROW’S
DATA COLLECTION AND ANALYSIS PROBLEMS
TODAY. Expert Witness, Electronic Discovery, Computer Forensics. 10 + years of experience and Court Adjudicated Expert Witness. Oklahoma Managing Director,
Clayton Hoskinson, CFE, CFCE, CCE, 121 NW 24th Ave.,
Suite 127, Norman, Oklahoma 73069 (405) 243-8248.
HANDWRITING IDENTIFICATION
POLYGRAPH EXAMINATION
Board Certified
Diplomate — ABFE
Life Fellow — ACFE
Arthur D. Linville
Court Qualified
Former OSBI Agent
FBI National Academy
(405) 636-1522
MEDICARE – MEDICAID – HEALTH LAW Mark S.
Kennedy, P.C. Attorneys and Counselors at Law – A
Health Law Boutique concentrating practice in
Healthcare regulatory and payment matters and other
Business Services to the healthcare provider and practitioner. Formerly Counsel to U.S. Department of
Health and Human Services’ Centers for Medicare &
Medicaid Services and Office of the Inspector
General. Voice (972) 479-8755; Fax (972) 479-8756;
[email protected]
TRAFFIC ACCIDENT RECONSTRUCTION
INVESTIGATION • ANALYSIS • EVALUATION • TESTIMONY
25 Years in business with over 20,000 cases. Experienced in
automobile, truck, railroad, motorcycle, and construction zone
accidents for plaintiffs or defendants. OKC Police Dept. 22 years.
Investigator or supervisor of more than 16,000 accidents.
Jim G. Jackson & Associates Edmond, OK (405) 348-7930
APPEALS and LITIGATION SUPPORT — Research
and writing by a veteran generalist who thrives
on wide variety of projects, big or small. Cogent.
Concise. Nancy K. Anderson, (405) 682-9554,
[email protected].
LEGAL RESEARCH AND WRITING. Brief writing;
motions; civil appeals; trial support. Reasonable
rates. Ten years experience. Lou Ann R. Barnes
(918) 810-3755; [email protected]
INTERESTED IN PURCHASING Producing &
Non-Producing Minerals; ORRI; O & G Interests.
Please contact: Patrick Cowan, CPL, CSW Corporation,
P.O. Box 21655, Oklahoma City, OK 73156-1655; (405)
755-7200; Fax (405) 755-5555; E-mail: [email protected].
Vol. 77 — No. 19 — 7/15/2006
MEDICAL MALPRACTICE
Need to file a med-mal claim? Our licensed medical
doctors will review your case for a low flat fee. Opinion letter no extra charge. Med-mal EXPERTS, Inc.,
www.medmalEXPERTS.com. (888) 521-3601
SOIL & GROUND WATER POLLUTION AND
DAMAGE INVESTIGATION: Expert Witness. Dr. G.A.
(JIM) SHIRAZI, Ph.D., RPG, CPSSC. 30yrs Experience
in Oil, Gas, Mining & Environmental cases in Federal,
District and Corporation Commission Courts. Tel: (405)
478-1228. Email: [email protected].
AFARM Consulting, L.C.
Raleigh A. Jobes, Ph.D.
2715 West Yost Rd
Stillwater, OK 74075-0869
Phone (405) 372-4485 Fax (405) 377-4485
E-Mail [email protected]
Agricultural Economic and Business Consultant
Will provide independent and objective analysis of agricultural
related problems. Resume and Fee schedule sent upon request.
CIVIL APPEALS, BRIEF WRITING for trial and
appellate courts. 19 years experience. Lauren LeBlanc
Day, office (405) 391-4428; cell (405) 706-9068;
[email protected].
EXPERT WITNESSES • ECONOMICS •
VOCATIONAL • MEDICAL Economic Damages,
Lost Profits Analysis, Business/Pension Valuations,
Employment Discrimination, Divorce, Wrongful
Discharge, Vocational Assessment, Life Care Plans,
Medical Records Review, Business/Legal Ethics.
National Experience. Call Patrick Fitzgerald.
(405) 447-6093.
SIGNATURE and HANDWRITING writer identified. DOCUMENTS examined for alterations.
Specialized lab equipment. Since 1978. Certified. PAT
TULL (405) 751-1299.
OFFICE SPACE
TWO OFFICES AVAILABLE FOR SUBLEASE — 204 N.
Robinson — OKC. Receptionist, phone, copier, fax, law
library, conference room, kitchen and DSL internet
access. Call Christy at Elliott and Peterson at (405) 2363600.
The Oklahoma Bar Journal
2081
OFFICE SPACE
POSITIONS AVAILABLE
OFFICE SPACE FOR OFFICE SHARING ARRANGEMENT. Downtown OKC location. Fully furnished, incl.
computer (if needed), receptionist, phone, copier, fax,
internet access and parking. Available immediately.
Contact W. L. McKay, (405) 239-2454.
INSURANCE DEFENSE – AV rated civil litigation firm
with offices in Tulsa and Oklahoma City seeking experienced attorneys for its growing practice in both locations. Insurance defense background and 3+ years
experience in civil litigation required. Compensation
commensurate with experience. All applications will
be held in the strictest of confidence. Please send CV
and references to Box “E,” Oklahoma Bar Association,
P.O. Box 53036, Oklahoma City, OK 73152.
OFFICES FOR RENT: NW Classen Location, OKC.
Telephone, law library, waiting area, receptionist, telephone answering service, office Desk & Chair, all
included in rent; Offices from $490.00 per month. No
lease required. Free parking. Gene (405) 525-6671.
PRESTIGIOUS OKC OFFICE SPACE — Ideal for small
law firm or solo practitioner. Located at 154th & N. May at
the entrance to Esperanza. Beautiful country French
building overlooks ponds and waterfalls; convenient to
Kilpatrick Turnpike and Hefner Parkway; inclusive of
receptionist; high speed internet; fax; copier; digital
telephone system; security system with cameras;
gourmet kitchen and conference room. $900 per month.
AVAILABLE NOW. Contact Gregg Renegar (405) 285-8118.
SOUTH TULSA OFFICE SPACE — Office sharing
arrangement with four attorneys, conference room, DSL
access, receptionist, secretarial, telephone, copier,
kitchen, free parking, excellent access, security system.
Furniture available. Some referral potential. Recently
remodeled. (918) 493-3360.
SPACIOUS MID-TOWN OFFICE available as one part of
three lawyer space. Secretarial, kitchen, conference room,
storage, office supplies, copier, high speed internet,
choice of furnished or unfurnished office. Courthouse
quickly accessible through proximity of Broken Arrow
Expressway. Especially targeting business, real estate,
accounting, contract, or tax law skills. (918) 747-3772 or
(918) 493-4939.
SUCCESSFUL LAW PRACTICE in small town outside
Tulsa is shutting down. Excellent opportunity for young
lawyer wanting to start own practice. Turnkey operation-furniture, books, computers, supplies, etc. Fantastic
potential. Lease all for $700/mo. Box “V,” Oklahoma Bar
Association, P.O. Box 53036, Oklahoma City, OK 73152.
DOWNTOWN OKC Office space available. Two
blocks east of Courthouse. Internet, fax, copiers, conference rooms, library, kitchen available. Price negotiable depending on space and services used. Contact
Firm Administrator at (405) 236-8541.
BARGAIN NORTHWEST OKLAHOMA CITY OFFICE
SPACE. Newly remodeled. Great location in prestigious
Land Mark Towers at Northwest Highway and I-44. Six
private offices plus nice conference room and large
reception area. Easy access. Phone system available. (405)
943-6650.
POSITIONS AVAILABLE
NW OKC CREDITOR'S RIGHTS firm seeking Attorney
with 0-2 yrs experience. Courtroom experience preferable. Please fax resume and cover letter to (405) 7732608.
2082
SMALL N.W. OKC FIRM WITH HEAVY CASE
LOAD seeks associate with experience in personal
injury, and civil litigation. Candidate must also have
bankruptcy experience and working knowledge with
the new updates. Our firm practice focuses mainly in
personal injury, family practice, criminal practice and
bankruptcy. All contacts will be kept confidential.
Compensation package commensurate with
experience and performance. Send resume to Box
“R,” Oklahoma Bar Association, P.O. Box 53036,
Oklahoma City, OK 73152.
POSITION AVAILABLE: PART TIME legal research
and writing. Must have graduated in top 10% of class.
Send writing sample, law school transcript, hourly
rate requested, details of availability, and resume.
Must have excellent computer skills. Please respond to
Box “X,” Oklahoma Bar Association, P.O. Box 53036,
Oklahoma City, OK 73152.
AV RATED TULSA FIRM seeks associate w/ min.
2yrs. experience. General litigation with emphasis on
business and construction litigation, medical negligence, and personal injury. Strong academic background, drafting skills, and courtroom presentation
skills required. All replies confidential. Send resume
and writing sample to Box “T,” Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, OK 73152.
TULSA LAW FIRM seeks attorney with 2-3
years’ experience in personal injury and workers’ compensation. Must have strong computer, research, and
writing skills. Compensation and benefits commensurate with case load. Submit confidential resume, writing sample, references and salary requirement to:
Legal Department, 6528 East 101st Street, D-1, Box 289,
Tulsa, OK 74133-6754.
OKC LAW FIRM seeks associate with experience or
interest in commercial litigation & real estate transactions. Accepting resumes in confidence from attys
with 2-5 years experience. Must have excellent
research and writing skills. Send resume', salary
requirements, references, writing sample to Box “N,”
Oklahoma Bar Association, P.O. Box 53036, Oklahoma
City, OK 73152.
AV RATED LAW FIRM ABEL, MUSSER, SOKOLOSKY,
MARES & KOURI seeks to expand by adding attorneys
with 10+ years experience in the areas of family law, tax
law and estate planning. Submit confidential resume to
Ed Abel, One Leadership Square, Suite 600, 211 N.
Robinson, Oklahoma City, OK 73102
The Oklahoma Bar Journal
Vol. 77 — No. 19 — 7/15/2006
POSITIONS AVAILABLE
POSITIONS AVAILABLE
ASSISTANT CITY ATTORNEY I: CITY OF NORMAN
Legal Department. Law degree from an accredited college or university. One to two years of progressively
complex and responsible related work experience in
order to provide quality legal representation and assistance to City staff. Admission to State Bar and must be
eligible for admission to practice law in Federal Court.
Provides support services in the areas of litigation,
municipal court prosecution, investigation of claims,
and preparation of contracts and ordinances. Applicant
must provide a writing sample with application. Selected applicant must pass a background investigation and
drug screen. $48,259 annually. Application Deadline:
August 4, 2006. Obtain application at: 201-C West Gray,
Human Resources Dept., CITY OF NORMAN (405) 3665482, JOB LINE (405) 366-5321, Web: cityofnorman.com
EOE/AA
STATE OF OKLAHOMA — Oklahoma Tax Commission. The office of the General Counsel — Oklahoma Tax
Commission has an opening a for staff attorney primarily assigned to general administrative proceedings, litigation, and drafting official legal opinions. Background
in accounting, finance or business law preferred. Minimum five years experience. Salary commensurate with
experience. Send resume and writing samples by
August 15, 2006 to Dawn Cash, Office of General Counsel, P.O. Box 53248, Oklahoma City, OK. 73152-3248. The
State of Oklahoma is an Equal Opportunity Employer.
NW OKC FIRM seeks an associate with at least 2-3
years of general litigation experience. Firm's practice is
focused on business law issues, including debtor creditor matters, real estate, corporate matters and litigation.
Firm's clients are widely diversified, including public
companies and financial institutions. Must be prepared to immediately assume substantial responsibility.
Compensation and benefits commensurate with experience and abilities. All applications will be held in strict
confidence. Send resume and salary requirements to
Box "B,” Oklahoma Bar Association, P.O. Box 53036,
Oklahoma City, OK 73152.
DRISKILL & JONES seeks associate with at least three
years experience. Competitive salary and benefits.
Must have ability to work independently and have good
writing skills. Send resume, references and writing
sample to: Driskill & Jones, Attn: Kathy, Chase Tower,
100 North Broadway, Suite 2300, Oklahoma City, OK
73102.
SEEKING ATTORNEY INTERESTED IN HANDLING
NON-LITIGATION MATTERS IN WOODWARD, Okla.
— Office share arrangement or possible association.
Prefer attorney with at least 5 years experience. Contact
Duke Halley, P.L.L.C., PO Box 509, Woodward, Oklahoma, 73802.
WANTED: Lawyer to assist with case load. I will provide office space, staffing, equipment and guaranteed
referrals. You keep 100% of your business, plus my referrals. Must be responsible and have strong work ethic.
This is a great opportunity for the right lawyer. Call
Mike Gassaway at (405) 232-2800.
NORTHEAST OKLAHOMA ABSTRACT AND TITLE
CO. SEEKS RECENT LAW SCHOOL GRADUATE FOR
IN-HOUSE COUNSEL POSITION. Please send resume
and references to Box “C,” Oklahoma Bar Association,
P.O. Box 53036, Oklahoma City, OK 73152.
Vol. 77 — No. 19 — 7/15/2006
SEEKING LICENSED OKLAHOMA ATTORNEY in
good standing with 0 to 5 years of experience practicing
as a corporate attorney. Full-time position with a
national online background check company headquartered in Tulsa with franchises in 20+ states outside of
Oklahoma. Candidate must be tech savvy, business
minded and flexible. Will work under the supervision
of a 15 year practicing attorney licensed in Oklahoma
and with company executives to maintain industry compliance, vendor contracting and franchise relations.
Position available early to mid August. Mail resumes to
Legal and Compliance Department 2705 East 21st Street,
Tulsa, Oklahoma, 74114.
NW OKC FIRM seeks an attorney with at least 5 years
experience in corporate law and transactional work,
preferably with experience in estate planning and some
knowledge of tax law. Firm's practice is focused on
business law issues, including debtor creditor matters,
real estate, corporate matters and litigation. Firm's
clients are widely diversified, including public companies and financial institutions. Must be prepared to
immediately assume substantial responsibility. Compensation and benefits commensurate with experience
and abilities. All applications will be held in strict confidence. Send resume and salary requirements to Box
"Z,” Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, OK 73152.
STATE FARM INSURANCE COMPANIES in-house
counsel, Angela Ailles & Associates has an Attorney
position available. Attorney with 5-10 years insurance
defense litigation experience preferred. State Farm
offers an excellent salary and benefits package. If interested, please fax your resume to (405) 478-0906. Equal
Opportunity Employer.
FOUR ATTORNEY AV-RATED LITIGATION FIRM
located in the Mid-Continent Tower with a second office
in Dallas, seeks association with one to three
experienced attorneys for the Tulsa office. Ideally the
attorneys would have complementary practices, such as
corporate, business litigation or estate planning. Send
replies to: Michael S. Linscott, 401 South Boston, Suite
230, Tulsa, OK 74103.
The Oklahoma Bar Journal
2083
POSITIONS AVAILABLE
GRAND LAKE AREA AV rated firm seeks associate.
Diverse general practice with emphasis in family law,
real estate and civil litigation. Please send replies to
Box “U,” Oklahoma Bar Association, P.O. Box 53036,
Oklahoma City, OK 73152.
LEGGETT & PLATT, INCORPORATED, A FORTUNE
500, NYSE MANUFACTURING COMPANY, is seeking
an experienced real estate attorney to handle domestic
and international real estate transactions and domestic
and international merger and acquisition projects.
Excellent academics required. Commercial real estate
transactional experience is required; M&A experience is
a plus (but we can provide M&A training). A minimum
of four years of relevant legal experience is preferred.
Leggett & Platt’s corporate office is in a beautiful country setting near Joplin, Missouri. About 160,000 people
live in the Joplin area. The area has one of the lowest cost
of living indices in the country. There are a variety of
rural, small town, and small city neighborhoods as well
as neighborhood and private schools. Most of us live
15 minutes or less from Leggett. Additional information
regarding Leggett & Platt is available at
www.leggett.com. We offer a competitive compensation
package commensurate with experience and qualifications. The compensation package includes base salary, a
cash bonus program, stock options, a discount stock
program, and retirement benefits as well as health,
disability, and life insurance benefits. Please reply to the
Legal Department, Leggett & Platt, Incorporated,
P.O. Box 757, Carthage, Missouri 64836, or by email to
[email protected]. Equal Access/Equal
Opportunity/Affirmative Action Employer.
NW OKC LAW FIRM seeks associate with 1-5 years
experience in estate planning and probate. Excellent
writing, communication and computer skills required.
All contacts will be kept confidential. Compensation
commensurate with experience and performance. Benefits include health, dental and life insurance. Send
resume, transcript and writing sample to Box “I,” Oklaoma Bar Association, P.O. Box 53036, Oklahoma City, OK
73152.
LESTER, LOVING & DAVIES, P.C., an AV rated law firm
seeks experienced lawyers with portable practices to
enter into an of counsel relationship. Send resumé to
Lester, Loving & Davies, 1701 South Kelly Avenue,
Edmond, OK 73013.
POSITIONS AVAILABLE
MidFirst Bank, an Oklahoma based financial
institution with over $10 billion in assets,
is one of the most successful financial
institutions in the state, having experienced
tremendous profit and growth over the last
10 years. As a result, we have an immediate
career opportunity available for a resultsoriented professional who will assist the
Company in achieving new levels of success.
ASSISTANT GENERAL COUNSEL
The responsibilities of this position will
include advising company’s management on
a wide array of issues, including consumer,
mortgage and business lending issues,
deposit issues, trust issues, and corporate
records issues; reviewing and drafting real
estate documents, loan documents, and general contracts; and working with all other
corporate attorneys in all divisions of the
Company including retail banking, mortgage
servicing and real estate. The qualified candidate will possess a law degree and 3-5 years
legal experience. Good writing, research and
communication skills are required. We offer a
competitive salary and benefits package. If
you wish to be considered for this opportunity please visit our website to apply.
www.midfirst.com AA/EOE M/F/DV
SMITH RHODES STEWART & ELDER, P.L.L.C. seeks
associate attorney for products liability, insurance
defense and general litigation practice. Submit
resume, writing sample and description of trial experience to 119 N. Robinson Ave. Ste. 820, Oklahoma City,
OK 73102.
OKC LAW FIRM seeks attorney with 3 to 5 years experience in litigation. Resume and salary requirements can
be submitted to Box “A,” Oklahoma Bar Association,
P.O. Box 53036, Oklahoma City, OK 73152.
GLASS LAW FIRM in Tulsa seeks associate attorneys
with 3 – 6 years experience, excellent academic credentials and past professional experience, demonstrated
writing abilities, and committed work ethic. Considering applications for opportunities in the Firm’s transactional practice (general business, health care, banking,
real estate, employment practices) and business litigation practice (state and federal courts). Competitive
salary and excellent benefits. Fax CV in confidence to
Hiring Partner (918) 582-7166.
PARALEGAL POSITION. 3+ years litigation experience.
Certificate or degree required. $37,000. Very little overtime, Paid medical, 401K, Paid Parking, Vacation, and
Sick Leave. Assigned to 6-7 attorneys. Please contact —
Hartzog Conger Cason & Neville, 201 Robert S. Kerr
Ave. St. 1600, Oklahoma City, OK Attn: Lois A. Clarkson.
[email protected]. Fax (405) 996-3403, Tele.
(405) 235-7000.
DOWNTOWN OKC AV FIRM seeks associate with
2-5 years experience in general civil and/or criminal
litigation. Strong academic, research and writing background required. Must be prepared to immediately
assume substantial responsibility. Compensation and
benefits commensurate with abilities. Send resume
and salary requirements to Box “Y”, Oklahoma Bar
Association, P.O. Box 53036, Oklahoma City, OK 73152.
2084
The Oklahoma Bar Journal
Vol. 77 — No. 19 — 7/15/2006
POSITIONS AVAILABLE
POSITION WANTED
CLAIMS CENTER AGENT ConocoPhillips is accepting
applications for a Claims Center Agent. Job includes:
Investigate incidents, evaluate liability from incidents
affecting company assets/employees. Review relevant
contractual provisions and management communication with business units regarding incident. Negotiate
with claimants, plaintiff counsel or third party insurer to
reach settlement of dispute. Manage resulting litigation,
attend depositions, mediations, settlement conferences
and trials as company representative. Pursue subrogation or collection efforts with third parties or their insurers. Oversee and insure accountability from vendors,
third party administrators and outside counsel. Responsible areas include general liability, subrogation/collection, real estate, and workers compensation. Surface real
estate responsibilities include acquisition, disposal and
leasing activities, as well as property tax valuation hearings, protests and any resulting litigation. Job Requires a
JD. Prefer 2-3 years experience in tort litigation, claims,
insurance defense setting. Workers’ compensation experience. Must have strong problem-solving and analytical
skills. Excellent communication and relationship building skills. Ability to know when to make a decision and
move on. Honest and open in communication. Ability to
take ownership of projects and accept responsibility.
Results-oriented. Applicants should go to www.conocophillips.com, Select CAREERS, then select Open
Positions — United States, and make application for
this position.
I HAVE 34 YEARS of experience of trial work in
criminal law work, and jury trials. I have had
one-hundred jury trial cases, rape, robbery, narcotics,
and murder. Three (3) capital murder cases. I am a
member of the Oklahoma Bar, will you please contact
me at 5225 South Bahama Ave., Sand Springs, OK
74063-2123. Phone No. (918) 419-9002.
THE SAC AND FOX NATION is now accepting
resumes for the position of Tribal Attorney (General
Counsel). Term begins October 1, 2006. Mail resumes to
the attention of the Tribal Secretary, Route 2, Box 246,
Stroud, Oklahoma 74079. Phone (918) 968-1141. Deadline date: July 28, 2006.
SUPERSTAR Associate. Vibrant, small firm in Tulsa has
rare opportunity for superstar associate experienced in
major business litigation. Impeccable credentials, desire
for challenge, and entrepreneurial spirit are essential.
Large firm experience a plus. We will provide opportunity and support. The rest is up to you. Rise as far, as fast
as your abilities. Compensation to match. For the right
person, a once in a career opportunity. Reply to Box “P,”
Oklahoma Bar Association, P.O. Box 53036, Oklahoma
City, OK 73152.
BOOKS
THE LAWBOOK EXCHANGE, LTD. Buys, sells and
appraises all major law book sets. Also antiquarian,
scholarly. Reprints of legal classics. Catalogues
issued in print and online MasterCard, Visa
and AmEx. (800) 422-6686; fax: (732) 382-1887;
www.lawbookexchange.com.
CLASSIFIED INFORMATION
CLASSIFIED RATES: One dollar per word per
insertion. Minimum charge $35. Add $15
surcharge per issue for blind box advertisements
to cover forwarding of replies. Blind box word
count must include “Box ____ , Oklahoma Bar
Association, P.O. Box 53036, Oklahoma City, OK
73152.” Display classified ads with bold headline
and border are $50 per inch. See www.okbar.org
for issue dates and Display Ad sizes and rates.
DEADLINE: Tuesday noon before publication.
Ads must be prepaid. Send ad in writing stating
number of times to be published to:
Melissa Brown
Oklahoma Bar Association
P.O. Box 53036
Oklahoma City, OK 73152
Publication and contents of any advertisement is not
to be deemed an endorsement of the views expressed
therein, nor shall the publication of any advertisement be considered an endorsement of the procedure
or service involved. All placement notices must be
clearly non-discriminatory.
www.okbar.org
Your one-click
resource to all
the information
you need.
The official Web site of the
Oklahoma Bar Association
Vol. 77 — No. 19 — 7/15/2006
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2086
The Oklahoma Bar Journal
Vol. 77 — No. 19 — 7/15/2006
Vol. 77 — No. 19 — 7/15/2006
The Oklahoma Bar Journal
2087