Volume 88 — No. 7 — 3/4/2017
Featured Speaker:
Steven J. Oshins, Esq.,
AEP (Distinguished)
Oshins & Associates, LLC,
Las Vegas, NV
Cosponsored by the OBA Estate Planning Section
ADVANCED
Estate
Planning
Featuring Steve Oshins
MARCH 24
Oklahoma Bar Center,
Cente OKC - WEBCAST AVAILABLE
$200 for early-bird registrations with payment received by March 17th; $225 for registrations
with payment received between March 20th – March 23rd. Walk-ins $275. Registration includes
continental breakfast and lunch. To receive a $10 discount for the in-person program, register
online at www.okbar.org/members/CLE. Registration for the live webcast is $250. Seniors may
register for $50 on in-person programs (late fees apply) and $75 for webcasts, and members licensed 2 years or less may register for $75 for in-person programs (late fees apply) and $100
for webcasts.
THE HYBRID DOMESTIC ASSET
PROTECTION TRUST: A
THIRD-PARTY TRUST THAT CAN
TURN INTO A SELF-SETTLED TRUST
There are now 16 states that have
statutes allowing a person to set up
an asset protection trust for
themselves. It is impossible to be an
estate planner without also being an
asset protection planner since asset
protection planning is a necessary
part of estate planning. Steve Oshins
will describe Domestic Asset
Protection Trusts, but will also
discuss the risks involved and how
those risks can easily be avoided
using a version of this trust called a
Hybrid Domestic Asset Protection
Trust.
HOW DO WE PLAN AFTER THE
VALUATION DISCOUNT RULES ARE
OFFICIALLY CHANGED?
The Treasury released Temporary
Treasury Regulations last year that
would substantially curb the ability
to obtain valuation discounts for
interfamily transfers. This has been
one of the most heavily-discussed
topics since those Temporary
Regulations were released. Does
this mean the end for advanced
estate planning? The answer is no.
Steve will spend time during the
session describing many advanced
estate tax reduction techniques that
would still be allowable even if the
Final Treasury Regulations are
drafted as they read in the
Temporary Treasury Regulations.
For details and to register go to: www.okbar.org/members/CLE
386
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Vol. 88— No. 7 — 3/4/2017
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Volume 88 — No. 7 — 3/4/2017
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The Oklahoma Bar Journal
Vol. 88— No. 7 — 3/4/2017
Oklahoma Bar Association
table of
contents
March 4, 2017 • Vol. 88 • No. 7
page
388
OBA Day at the Capitol
391
Index to Court Opinions
392 Opinions of Supreme Court
398 Opinions of Court of Criminal Appeals
399
Calendar of Events
401 Opinions of Court of Civil Appeals
410
Disposition of Cases Other Than by Publication
Vol. 88— No. 7 — 3/4/2017
The Oklahoma Bar Journal
389
NAME:
ADDRESS:
CITY, ST, ZIP:
PHONE:
390
The Oklahoma Bar Journal
Vol. 88— No. 7 — 3/4/2017
Index to Opinions of Supreme Court
2017 OK 11 MALINDA FALCONE, Plaintiff/Appellant, v. LIBERTY MUTUAL INSURANCE COMPANY, LM GENERAL INSURANCE COMPANY, and ANTHONY
LEWIS, Defendants/Appellees. No. 115,252................................................................................... 3 9 2
Index to Opinions of Court of Criminal Appeals
2017 OK CR 1 IN RE: ADOPTION OF THE 2017 REVISIONS TO THE OKLAHOMA
UNIFORM JURY INSTRUCTIONS – CRIMINAL (SECOND EDITION) CASE NO.
CCAD-2017-1........................................................................................................................................ 3 9 8
Index to Opinions of Court of Civil Appeals
2017 OK CIV APP 8 ROBERT D. NIX, Petitioner, vs. FIRST STAFFING GROUP USA,
COMPSOURCE MUTUAL INS. and THE WORKERS’ COMPENSATION COMMISSION, Respondents. Case No. 114,526.............................................................................................. 4 0 1
2017 OK CIV APP 9 TINKER FEDERAL CREDIT UNION, Plaintiff, vs. JIMMY D.
GRANT, Defendant/Appellant, BISHOP L. BERRYHILL and CAMDEN L. BERRYHILL, Defendants/Appellees, and KENNETH BOULWARE, SHEILA MOSLEYBOULWARE and SUZANN M. GRANT, Defendants. Case No. 114,176.................................... 4 0 4
Jordan Jackson Joins
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Spencer Fane LLP is proud to announce that
Jordan Jackson has joined the firm. Jordan is
an oil and gas attorney, working with clients
on both litigation and transactional matters.
He performs due diligence for acquisitions,
and prepares acquisition, drilling, and
division order title opinions covering lands in
Oklahoma, Texas, and North Dakota. Jordan
has also advised clients on resolving
complex title issues, regulatory matters, and
other issues related to oil and gas law.
Jordan graduated with honors from the
University of Texas School of Law and
with distinction from Duke University.
Spencer Fane LLP
9400 N. Broadway Ext., Suite 600
Oklahoma City, OK 73114
405.844.9900 | spencerfane.com
Vol. 88— No. 7 — 3/4/2017
The Oklahoma Bar Journal
391
Opinions of Supreme Court
Manner and Form of Opinions in the Appellate Courts;
See Rule 1.200, Rules — Okla. Sup. Ct. R., 12 O.S. Supp. 1996 (1997 T. 12 Special Supplement)
2017 OK 11
MALINDA FALCONE, Plaintiff/Appellant,
v. LIBERTY MUTUAL INSURANCE
COMPANY, LM GENERAL INSURANCE
COMPANY, and ANTHONY LEWIS,
Defendants/Appellees.
No. 115,252. February 14, 2017
APPEAL FROM THE DISTRICT COURT OF
OKLAHOMA COUNTY, OKLAHOMA
HONORABLE THOMAS E. PRINCE
¶0 Plaintiff/Appellant Malinda Falcone
brought an insurance claim against Defendants/Appellees for payment of her emergency room medical expenses. Her claim
was made pursuant to the Uninsured/
Underinsured Motorist (UM) provisions of
her mother’s automobile insurance policy
following the injuries she sustained as a
passenger in her mother’s car when an uninsured driver ran a stop sign and collided
with them. Defendants/Appellees initially
questioned the decision to refer Plaintiff to
the level 2 trauma center of the emergency
room and refused to pay the bill Plaintiff
received from the OU Medical Center
trauma center. After nearly a year of offers
and rejections, Plaintiff sued Defendants
for breach of the implied duty of good
faith and fair dealing for failing to pay her
trauma room “compensatory damages” as
required under the policy. The trial court
granted summary judgment in favor of
Defendants and denied Plaintiff’s motion
for new trial. We hold it is a question for
the trier of fact whether Defendants
showed a lack of good faith in handling
Plaintiff’s claim for payment. The trial
court erred in granting summary judgment in Defendants’ favor, holding as a
matter of law that Defendants did not
commit the tort of bad faith.
REVERSED AND REMANDED
Randall K. Calvert, Rabindranath Ramana,
Oklahoma City, Oklahoma, for Appellant,
392
Tim D. Cain, Oklahoma City, Oklahoma, for
Liberty Mutual Insurance Company and LM
General Insurance Company, Appellees.
OPINION
WATT, J.:
¶1 At issue in this appeal is whether defendants/appellees Liberty Mutual Insurance
Company and LM General Insurance Company have committed the tort of bad faith by
withholding payment of “compensatory damages” from plaintiff/appellant Malinda Falcone. This Court previously retained this case.
We hold that summary judgment was premature and that the question is one for the jury.
¶2 Plaintiff Falcone seeks compensatory and
punitive damages for the breach of good faith
and fair dealing by Defendant for its refusal to
pay her medical bills incurred at the emergency room Level 2 (L2) trauma center under the
uninsured/ underinsured motorist (UM) insurance coverage of her mother, Linda Smith. The
trial court granted summary judgment in favor
of defendant and denied Plaintiff’s motion for
new trial.
¶3 Plaintiff’s request for additional briefing
was deferred to the decision on the merits. The
request is denied.
FACTS
¶4 Plaintiff was injured in an automobile
accident while riding as a passenger in the Kia
Optima driven by her mother, Linda Smith, on
October 5, 2013, in Oklahoma City, Oklahoma.
The accident was caused by defendant, Anthony Lewis, an uninsured motorist, who ran a
stop sign and collided with Ms. Smith’s vehicle. Plaintiff was taken by ambulance to the OU
Medical Center Emergency Room. The ER
transferred her to its L2 trauma center. The
medical bill from OU Medical Center was
$47,203.00 for the ER treatment, which included $24,420.25 for the L2 trauma center. Additional charges were also incurred for treatment
elsewhere after the date of the accident, and
Plaintiff submitted medical bills in the total
amount of $67,098.23 to Defendant Liberty Mutual Insurance Company to be paid as “com-
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Vol. 88— No. 7 — 3/4/2017
pensatory damages” under her mother’s UM
policy coverage.
¶5 Liberty Mutual submitted the medical
records to two expert witnesses for review. The
first expert, Dr. Tereshchenko, opined that Falcone did not meet the triage criteria for L1 or
L2 trauma, and that the three CT scans performed were not necessary. The other expert,
Dr. Stewart, also concluded Falcone did not fit
L2 trauma patient guidelines, and found “no
evidence in the medical record or the ambulance treatment record to substantiate an L2
trauma response at University Hospital as reasonable and necessary.” Dr. Stewart noted Falcone was discharged after four hours of her
arrival with a cervical collar, but without a pain
medicine prescription. The emergency room
charges and the L2 trauma charges were submitted to Liberty Mutual, which denied the L2
trauma charges as unnecessary.
¶6 Falcone filed a petition, alleging breach of
contract of the UM benefits, for failing to pay
the L2 trauma charges as “compensatory damages” under the UM contract provisions, and
the breach of the duty of good faith and fair
dealing (bad faith). Liberty Mutual filed its
motion for summary judgment, raising the
defense that it is not bad faith to question the
reasonableness of the medical charges. After
several lower offers were made by Defendant
to settle, it proffered $100,000.00 on December
23, 2014, as the “unconditional payment of
uninsured motorist limits.”
¶7 On July 11, 2016, the district court granted
the motion for summary judgment in favor of
Liberty Mutual. The court ruled Oklahoma law
allows an insurer to question the reasonableness of medical charges without being in breach
of the duty of good faith and fair dealing. The
court’s order provides:
11. The Court has not identified any binding precedent in Oklahoma to the effect
that all emergency room charges following
an accident are, as a matter of law, considered to be ‘compensatory damages’ for
purposes of a UM claim. Plaintiff Falcone
has relied on Radford-Shelton Associates
Dental Laboratory, Inc. v. Saint Francis
Hospital, Inc., 1976 OK CIV APP 41, 569
P.2d 506. Radford-Shelton is, however,
distinguishable from this case. RadfordShelton, concerned the issue of ‘successive
tortfeasors’ and whether the original tortfeasor had a right to secure contribution
Vol. 88— No. 7 — 3/4/2017
against another party who negligently
aggravated the initial injury. Id., at 507. The
Court there held that a right of contribution existed because, to hold otherwise,
would have resulted in unjust enrichment
on the part of the subsequent tortfeasor.
Id., at 511. . . .
12. Based on the undisputed facts of this
case, the Liberty Mutual Defendants acted
within their rights to analyze Plaintiff Falcone’s UM claim through the lens and/or
context of OUJI 4.1K. More specifically, as a
matter of law, the Liberty Mutual Defendants did not commit the tort of bad faith
by considering whether Plaintiff Falcone’s
emergency room charges were reasonable,
in light of the necessary medical care and
treatment provided during the emergency
room visit, rather than compensating Plaintiff Falcone for the full amount of the emergency room medical charges that were
incorrect. See OUJI 4.1K.1
13. . . .[O]ther than the claim addressed
above in this Journal Entry, Plaintiff Falcone has not asserted that the Liberty
Mutual Defendants engaged in any misconduct in this case.
OFFERS AND NEGOTIATIONS
¶8 Defendant’s adjustor Dunlap initially
evaluated Plaintiff’s claim at between $37,855.23
- $42,855.25 because the peer review group
opined the three CT scans were unnecessary. It
was their opinion that x-rays were sufficient.
Dunlap offered $37,855.23, which consisted of:
$28,855.23 for medical bills; $10,000.00 for noneconomic damages; less $1,000.00 for medical
pay coverage. Dr. Stewart opined Plaintiff’s
injuries were not L2 trauma level. Dunlap later
increased the range of the offer to $42,855.23 $55,677.98, adding the cost of CT scans because
the first and second peer reviews differed.
Defendant sent a check for $52,677.98 to Plaintiff. However, Plaintiff did not cash the check.
Plaintiff filed her petition on August 4, 2014,
for breach of contract and bad faith after
approximately ten months of negotiations
resulting in offers of nearly $15,000.00 less than
the documented bill Plaintiff presented to
Defendant. She amended her petition on October 3, 2014, adding LM General as a party.
After the lawsuit was filed, Defendant sent a
check on December 23, 2014, for $100,000.00
representing the “unconditional payment of
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393
UM limits,” more than one year after Plaintiff
incurred the medical expenses.
¶9 Defendant offered less than the maximum
amount of its evaluations after taking the position the L2 trauma treatment was unwarranted. More than once, it offered the low figure
instead of the higher one. The change in the
offers also could be seen as arbitrary attempts
to close a case. Ultimately, Plaintiff was forced
to file a lawsuit, after which Defendant sent a
check for $100,000.00, the UM limits of the
policy.
DISCUSSION AND AUTHORITY
¶10 In Christian v. American Home Assurance
Company, 1977 OK 141, 577 P.2d 899, this Court
adopted the rule that an insurer has an implied
duty to deal fairly and to act in good faith with
its insured. The violation of this duty gives rise
to an action in tort for which consequential
damages, as well as punitive damages, may be
sought. Id., at 904. We did not hold that an
insurer breaches this duty merely by litigating
a claim or by receiving a judgment against it in
an amount larger than it offered its insured.
Tort liability is to be imposed only upon a clear
showing “that the insurer unreasonably, and in
bad faith, withholds payment of the claim of its
insured.” Id., at 905. In this case, whether withholding payment for the costs of the trauma
center as “compensatory damages” was unreasonable and in bad faith is a fact question for a
jury. See Newport v. USAA, 2000 OK 59, 11 P.3d
190; McCorkle v. Great Atlantic Insurance Co.,
1981 OK 128, 637 P.2d 583. We have held that
medical expenses can constitute “compensatory damages.” Southwestern Greyhound Lines,
Inc. v. Rogers, 1954 OK 40, 267 P.2d 572; Denco
Bus Lines, Inc. v. Hargis, 1951 OK 11, 229 P.2d
560. The amount of the bill Plaintiff received
for the treatment at the L2 trauma center was
completely beyond her control, as was the
decision of the ER doctor to send her there in
the first place.
¶11 While an insurance company may consider the reasonableness of compensatory
damages when it questioned whether the L2
trauma center was necessary, we find the trial
court erred in granting summary judgment in
Defendant’s favor, holding as a matter of law
that Defendant did not commit the tort of bad
faith. A jury’s determination of the facts is necessary to determine whether a lack of good faith
is shown by Defendant’s offers to Plaintiff over
the course of one year, which ultimately led to
394
Plaintiff’s lawsuit and the offer by Defendant of
the policy’s UM limits of $100,000.00. We hold
the significance of the undisputed facts, and
whether Defendant’s actions over the course of
their negotiations constituted bad faith, are
questions for the trier of fact. Summary judgment in favor of Defendant was premature and
must be reversed.
¶12 The trial court’s order denying Plaintiff’s
motion for new trial is reversed. This case is
remanded to the trial court for further proceedings in accordance with the views expressed in
this opinion.
¶13 REVERSED AND REMANDED.
Combs, C.J., Kauger, Watt, Winchester, Edmondson, and Colbert, JJ., concur;
Gurich, V.C.J., (by separate writing), and Reif,
J., concur in part, dissent in part.
GURICH, V.C.J., with whom REIF, J. joins
concurring in part and dissenting in part:
¶1 I agree with the majority that this cause
should be remanded to the trial court. It was
error for the trial court to sustain the Defendants’ Motions for Summary Judgment. Based
on the record, Liberty Mutual acted in bad
faith. I would submit the cause to a jury, but
only for a determination as to whether the
Plaintiff, Malinda Falcone, is entitled to actual
and punitive damages.
Relevant and Undisputed Facts
¶2 Plaintiff Malinda Falcone was the passenger in her mother’s car when the car was
involved in an accident caused by Defendant
Driver Anthony Lewis on October 5, 2013. At
the time of the accident, Ms. Falcone was an
“insured” under her mother’s LibertyGuard
Auto Policy. The policy was issued by Defendant LM General Insurance Company. Defendant Liberty Mutual Insurance Company owns
100% of Defendant LM General Insurance
Company. The Defendant Driver, Mr. Lewis,
was uninsured.
¶3 The LM General Policy provided for uninsured motorist coverage up to $100,000 per
person. The UM policy provision provides:
We will pay compensatory damages which
an ‘insured’ is legally entitled to recover
from the owner or operator of an ‘uninsured motor vehicle’ because of ‘bodily
injury:’
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Vol. 88— No. 7 — 3/4/2017
1. Sustained by an ‘insured;’ and
2. Caused by an accident.
The policy also provided for $1,000 of
Medical Payments Coverage. The med-pay
provision provides:
We will pay reasonable expenses incurred for
necessary medical and funeral services because
of ‘bodily injury:’
1. Caused by accident; and
2. Sustained by an ‘insured.’
¶4 Immediately after the accident, Ms. Falcone was transported by ambulance to the OU
Medical Center emergency room. She arrived
at 1:16 p.m. and was released at 4:55 p.m. She
was not admitted to the hospital. She arrived to
the emergency room on a backboard with a
c-collar in place. She had vertebral tenderness,
but according to OU Medical Center personnel,
“the interview [with Ms. Falcone] was limited
because of [her] inability to communicate
clearly.”1 Ms. Falcone was under significant
stress and crying according to the medical
record. An abdominal examination was unreliable. Medical personnel at the emergency room
determined Ms. Falcone should be transferred
to the trauma unit. CT scans were done on her
brain, spine, abdomen, and pelvis, and x-rays
were also performed. All came back within
normal limits. Ms. Falcone was discharged and
told to follow up in two weeks.
¶5 The OU Medical Center emergency room
billed Ms. Falcone $47,203.00 for her visit. The
emergency room bill included a $24,420.25
charge for the hospital’s “Trauma II” designation. Ms. Falcone also received subsequent
treatment for neck, knee, back pain, and severe
headaches. She was examined by a family physician and received physical therapy. She was
referred to a pain management specialist and
received two cervical spine epidural steroid
injections. Her medical bills totaled $67,098.23.2
¶6 In February 2014, Ms. Falcone, through
her attorney, submitted a UM claim to Liberty
Mutual for policy limits. Liberty Mutual investigated the claim and sent the emergency room
records to two out-of-state utilization reviewers. Both reviewers, a Dr. Stewart and a Dr.
Tereshchenko, reviewed the medical records,
bills, and other documents. Both reviewers
found that the treatment of the patient at the
OU Medical Center emergency room as Level
II trauma was not necessary although both
Vol. 88— No. 7 — 3/4/2017
reviewers agreed it was appropriate to transport Ms. Falcone to the emergency room. One
reviewer also took issue with the emergency
room physician’s decision to order CT scans,
concluding the scans weren’t necessary. Relying on such evaluations, Liberty Mutual did
not initially agree to pay the $24,420.24 Trauma
II emergency room charge and refused to pay
for charges related to the CT scans. Liberty
Mutual offered to settle Ms. Falcone’s claim for
$37,855.23 on April 1, 2014. Plaintiff Falcone
declined the offer the next day.
¶7 After Ms. Falcone declined the initial
offer, Liberty Mutual reevaluated the claim and
increased the evaluation to $52,677.98 to include all charges related to the CT scans but
continued to refuse to pay the Trauma II charges. Liberty Mutual sent Ms. Falcone a check on
April 17, 2014. The check was not cashed. On
July 26, 2014, Liberty Mutual sent Ms. Falcone
a letter advising her that they had paid $1,000
under the policy’s med-pay coverage and that
such med-pay coverage had been exhausted.
¶8 On August 4, 2014, Ms. Falcone, and her
mother, Plaintiff Linda Smith, filed this action
alleging breach of contract and bad faith against
the Liberty Mutual Defendants and negligence
against Defendant Anthony Lewis. The parties
participated in mediation in December of 2014.
After mediation failed to resolve the case, Liberty Mutual paid the $100,000 UM limit to Ms.
Falcone to conclude the contract claim. Plaintiff
Linda Smith, Ms. Falcone’s mother, dismissed
her breach of contract claim without prejudice
on January 16, 2015. On August 25, 2016, Ms.
Falcone filed a suggestion of death, advising
the court that the Defendant Anthony Lewis is
now deceased. On the same date, Ms. Falcone
dismissed her negligence claim against Defendant Lewis without prejudice. Thus, only Ms.
Falcone’s bad faith and punitive damages
claim remained pending against the Liberty
Mutual Defendants.
¶9 The trial court granted summary judgment in favor of both Liberty Mutual Defendants on March 29, 2016, and found that as a
matter of law, Liberty Mutual did not commit
the tort of bad faith by considering whether
Ms. Falcone’s emergency room charges were
reasonable, in light of the necessary medical
care and treatment provided during the emergency room visit, rather than compensating
Ms. Falcone for the full amount of the emergency room medical charges that were incurred.
The trial court denied Ms. Falcone’s Motion for
The Oklahoma Bar Journal
395
New Trial on July 11, 2016. Ms. Falcone appealed and filed a Motion to Retain in this
Court. The Motion to Retain was granted on
August 22, 2016.
Liberty Mutual Acted in Bad Faith
¶10 An insurer has an implied-in-law duty to
act in good faith and deal fairly with the
insured to ensure that the policy benefits are
received. Christian v. Am. Home Assurance
Co., 1977 OK 141, ¶ 25, 577 P.2d 899, 904. The
essence of a bad-faith action “is the insurer’s
unreasonable, bad-faith conduct, including the
unjustified withholding of payment due under
a policy.” McCorkle v. Great Atl. Ins. Co., 1981
OK 128, ¶ 21, 637 P.2d 583, 587. The tort of bad
faith does not foreclose the insurer’s right to
deny a claim, resist payment, or litigate any
claim to which the insurer has a legitimate
defense. Buzzard v. Farmers Ins. Co., 1991 OK
127, ¶ 13, 824 P.2d 1105, 1109. However, when
presented with a claim by its insured, an insurer must conduct an investigation reasonably
appropriate under the circumstances and the
claim must be paid promptly unless the insurer
has a reasonable belief that the claim is legally
or factually insufficient. Id. The decisive question is whether the insurer had a good faith
belief, at the time its performance was requested, that it had justifiable reason for withholding payment under the policy. Id. “The knowledge and belief of the insurer during the time
period the claim is being reviewed is the focus
of a bad-faith claim.” Id.
¶11 The UM provision in the Liberty Mutual
policy provides:
We will pay compensatory damages which
an ‘insured’ is legally entitled to recover
from the owner or operator of an ‘uninsured motor vehicle’ because of ‘bodily
injury:’
1. Sustained by an ‘insured;’ and
2. Caused by an accident.
In contrast, the med-pay provision in the
policy provides that:
We will pay reasonable expenses incurred
for necessary medical and funeral services
because of ‘bodily injury:’
1. Caused by accident; and
2. Sustained by an ‘insured.’
396
The med-pay provision might arguably allow
Liberty Mutual to do what it did in this case
and send the claim to a reviewer to determine
what medical services/expenses were “reasonable” and “necessary.” But no such language
exists in the UM provision. The UM provision
requires that Liberty Mutual pay the compensatory damages the insured is legally entitled
to recover from the uninsured driver. The language of the UM provision does not allow Liberty Mutual to question the reasonableness or
necessity of the medical services or expenses.
Nor is there any statutory authority to allow an
insurance company to withhold payment.3
¶12 In addition, Liberty Mutual has not disputed, and cannot dispute, that Ms. Falcone
was taken to the emergency room as a direct
result of the car accident with Mr. Lewis. Ms.
Falcone was taken to the OU Medical Center
emergency room based upon the choice of the
ambulance driver, not her own. She received
tests and treatment selected by the OU Medical
Center emergency room physicians, and again,
had no say in the treatment or decision to send
her to Trauma II. There has been no allegation
that there was any kind of supervening cause,
i.e., some reckless act by emergency room staff
that made Ms. Falcone’s injuries worse and
could have allegedly been a supervening cause.
In fact, it’s just the opposite — Liberty Mutual
argues the emergency room staff ordered too
many tests and were too cautious in treating Ms.
Falcone as Level II trauma. Oklahoma law is
clear and well settled on this issue. The OU
Medical Center emergency room bill is part of
Ms. Falcone’s compensatory damages.4 Liberty
Mutual ignored the plain language of their
policy and disregarded well settled law regarding compensatory damages. The very act of
using the utilization reviewers as a pretext to
deny payment of the emergency room bill in
this case is bad faith. Liberty Mutual had no
justifiable reason for withholding payment
under the policy.5
Conclusion
¶13 Because Liberty Mutual acted in bad
faith, on remand, Liberty Mutual’s defense
should be limited to the amount of damages
for which they are liable. Ms. Falcone should
be allowed to present all of her evidence relating to Liberty Mutual’s bad faith conduct in
handling her claim. From that evidence a jury
can then determine the amount of actual damages owed Ms. Falcone for Liberty Mutual’s
bad faith conduct and whether Liberty Mutual
The Oklahoma Bar Journal
Vol. 88— No. 7 — 3/4/2017
recklessly disregarded its duty to deal fairly
and act in good faith6 or intentionally and with
malice breached its duty to deal fairly and act
in good faith in disputing the full payment of
Ms. Falcone’s emergency room bill, entitling
Ms. Falcone to an award of punitive damages.7
WATT, J.:
1. The trial court’s reference to the Oklahoma Uniform Jury Instructions-Civil 4.1 (OUJI-CIV 4.1) recognizes a factual issue was presented.
Pursuant to 4.1(K), a jury would decide the amount of damages based
on “the reasonable expenses of the necessary medical care, treatment,
and services, past and future,” if it decides in Plaintiff’s favor.
GURICH, V.C.J., with whom REIF, J. joins concurring in part and dissenting in part:
1. Record on Accelerated Appeal, Ex. 10, at Ex. 1.
2. The 67,098.23 in medical bills included the $47,203.00 bill from
OU Medical Center and approximately $20,000.00 for treatment after
the date of the accident.
3. Uninsured motorist coverage is for the “protection of persons
insured thereunder who are legally entitled to recover damages from
owners or operators of uninsured motor vehicles and hit-and-run
motor vehicles because of bodily injury, sickness or disease, including
death resulting therefrom.” 36 O.S. Supp. 2014 §3636(B). See also Kratz
v. Kratz, 1995 OK 63, ¶ 7, 905 P.2d 753, 755 (“We have recognized that
uninsured motorist coverage is a carrier’s direct promise to its insured
to pay the insured for a loss, rather than a promise to its insured to pay
Vol. 88— No. 7 — 3/4/2017
a third party; it is ‘first-party coverage’ like collision insurance, not
‘third-party coverage’ like public liability insurance. The recovery of
the insured is based on the terms of the policy and the action is one in
contract.”).
4. It is undisputed that the negligence of Defendant Lewis caused
the accident. Plaintiff suffered damages as a result. Title 23 O.S. § 61
provides that “[f]or the breach of an obligation not arising from contract,
the measure of damages, except where otherwise expressly provided by
this chapter, is the amount which compensate for all detriment proximately caused thereby, whether it could have been anticipated or not.”
This Court has defined “detriment” as “a loss or harm suffered by the
person wrongfully injured and the measure of damages is the amount
which will adequately compensate for all detriment proximately
caused thereby.” Chicago, R.I. & P.R. Co. v. Wright, 1954 OK 312, ¶ 31,
278 P.2d 830, 836. In addition, Black’s Law states that compensatory
damages are synonymous with actual damages — the amount awarded to a complainant to compensate for a proven injury or loss; damages that repay actual losses.
5. The Tenth Circuit, relying on this Court’s case law, has held that
evidence that an insurance company ignored the provisions of its own
policy and ignored Oklahoma law in disputing or denying certain
coverage can constitute bad faith. Haberman v. The Hartford Ins.
Group, 443 F.3d 1257, 1271 (10th Cir. 2006).
6. Under 23 O.S. 2011 §9.1(B)(2)(b), if a jury finds that the insurer
has recklessly disregarded its duty to deal fairly and act in good faith
with its insured, the jury may award punitive damages in the amount
of actual damages or $100,000 whichever is greater.
7. Under 23 O.S. 2011 § 9.1(C)(2)(a-b), if a jury finds that the
insurer has intentionally and with malice breached its duty to deal
fairly and act in good faith with its insured, the jury may award punitive damages up to $500,000 or twice the amount of actual damages,
whichever is greater. “[M]alice may be shown by ‘an indifference to or
conscious disregard’ of the rights of another, justifying an award of
punitive damages.” Alsobrook v. Nat’l Travelers Life Ins. Co., 1992 OK
CIV APP 168, ¶ 18, 852 P.2d 768, 773.
The Oklahoma Bar Journal
397
Court of Criminal Appeals Opinions
2017 OK CR 1
IN RE: ADOPTION OF THE 2017
REVISIONS TO THE OKLAHOMA
UNIFORM JURY INSTRUCTIONS –
CRIMINAL (SECOND EDITION)
CASE NO. CCAD-2017-1. February 9, 2017
ORDER ADOPTING AMENDMENTS TO
OKLAHOMA UNIFORM JURY
INSTRUCTIONS-CRIMINAL
(SECOND EDITION)
¶1 On January 17, 2017, The Oklahoma
Court of Criminal Appeals Committee for
Preparation of Uniform Jury Instructions submitted its report and recommendations to the
Court for adoption of amendments to Oklahoma Uniform Jury Instructions-Criminal (Second Edition). The Court has reviewed the
report by the committee and recommendations
for the adoption of the 2017 proposed revisions
to the Uniform Jury Instructions. Pursuant to
12 O.S. 2011, § 577.2, the Court accepts that
report and finds the revisions should be
ordered adopted.
¶2 IT IS THEREFORE ORDERED ADJUDGED AND DECREED that the report of
The Oklahoma Court of Criminal Appeals
Committee for Preparation of Uniform Jury
Instructions shall be accepted, the revisions
shall be available for access via the internet
from this Court’s web site at www.okcca.net on
the date of this order and provided to West
Publishing Company for publication. The
Administrative Office of the Courts is requested to duplicate and provide copies of the revisions to the judges of the District Courts and
the District Courts of the State of Oklahoma are
directed to implement the utilization of these
revisions effective on the date of this order.
398
¶3 IT IS THEREFORE ORDERED ADJUDGED AND DECREED the amendments
to existing OUJI-CR 2d instructions, and the
adoption of new instructions, as set out in the
following designated instructions and attached
to this order, are adopted to wit:
1-11; 4-128; 4-139; 6-39A; 6-39B; 7-11; 7-12;
8-4; 8-15A; 8-46; 8-61; 9-45; 10-13;
¶4 The Court also accepts and authorizes the
updated committee comments and notes on
use to be published, together with the above
styled revisions and each amended page in the
revisions to be noted at the bottom as follows
“(2017 Supp.)”.
¶5 IT IS THE FURTHER ORDER OF THIS
COURT that the members of The Oklahoma
Court of Criminal Appeals Committee for
Preparation of Uniform Criminal Jury Instructions be commended for their ongoing efforts
to provide up-to-date Uniform Jury Instructions to the bench and the bar of the State of
Oklahoma.
¶6 IT IS SO ORDERED.
¶7 WITNESS OUR HANDS AND THE SEAL
OF THIS COURT this 9th day of February, 2017.
/s/ GARY L. LUMPKIN,
Presiding Judge
/s/ DAVID B. LEWIS,
Vice Presiding Judge
/s/ ARLENE JOHNSON, Judge
/s/ CLANCY SMITH, Judge
/s/ ROBERT L. HUDSON, Judge
ATTEST:
Michael S. Richie
(Clerk)
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Vol. 88— No. 7 — 3/4/2017
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The Oklahoma Bar Journal
Vol. 88— No. 7 — 3/4/2017
Court of Civil Appeals Opinions
2017 OK CIV APP 8
ROBERT D. NIX, Petitioner, vs. FIRST
STAFFING GROUP USA, COMPSOURCE
MUTUAL INS. and THE WORKERS’
COMPENSATION COMMISSION,
Respondents.
Case No. 114,526. June 3, 2016
PROCEEDING TO REVIEW AN ORDER OF
THE WORKERS’ COMPENSATION
COMMISSION
REVERSED
John R. Colbert, COLBERT COOPER HILL
ATTORNEYS, Ardmore, Oklahoma, for Petitioner,
Donald A. Bullard, Terri J. Phillips, BULLARD
& ASSOCIATES, P.C., Oklahoma City, Oklahoma, for Respondents.
BRIAN JACK GOREE, JUDGE:
¶1 Petitioner, Robert D. Nix (Claimant), seeks
review of the order of the Workers’ Compensation Commission which affirmed the decision
of its administrative law judge (ALJ) denying
an extension of temporary total disability compensation. Claimant’s injury was treated with
intravenous administration of medication in
the emergency room. We hold the Commission
committed an error of law in ruling that such
treatment was not an injection within the
meaning of 85A O.S. Supp. 2014 §62(A).
¶2 Claimant was injured on March 23, 2015
when the semi-truck he was driving rolled
over after the brakes failed. Ambulance personnel applied a cervical collar and transported him to the hospital in Ardmore, Oklahoma
where he reported back pain, dizziness and
blurred vision. In the emergency room CT
studies were made of his head, cervical spine,
lumbar spine, abdomen and pelvis. X-rays
were taken of his chest and left knee. His blood
was drawn and medication was administered
by IV. The diagnostic studies showed no acute
or substantial abnormalities. He was given
prescriptions and discharged.
¶3 Claimant filed a notice of claim for compensation with the Workers’ Compensation
Commission alleging a single incident injury to
Vol. 88— No. 7 — 3/4/2017
his left leg, lower back, and head. On April 27,
2015 Claimant requested a hearing for temporary total disability compensation for a period
beginning March 23, 2015.
¶4 Respondents, First Staffing Group, USA,
and Compsource Mutual Ins. Co. (collectively
Employer), filed an answer admitting Claimant was injured on the job and paid Claimant
eight weeks of temporary total disability compensation. Claimant sought an additional eight
weeks of TTD pursuant to §62(A), which limits
TTD to eight weeks but provides an eightweek extension of TTD if the employee “is
treated with an injection or injections.”
Employer objected, and the ALJ denied the
additional TTD, finding that the intravenous
therapy that Claimant received was not an
injection within the meaning of §62. The Commission affirmed the ALJ’s order.
¶5 In adopting the Administrative Workers’
Compensation Act, (AWCA) the Legislature
implemented the following standards for judicial review of Commission decisions:
The Supreme Court may modify, reverse,
remand for rehearing, or set aside the judgment or award only if it was:
1. In violation of constitutional provisions;
2. In excess of the statutory authority or
jurisdiction of the Commission;
3. Made on unlawful procedure;
4. Affected by other error of law;
5. Clearly erroneous in view of the reliable,
material, probative and substantial competent evidence;
6. Arbitrary or capricious;
7. Procured by fraud; or
8. Missing findings of fact on issues essential to the decision.
85A O.S. Supp. 2014 §78(C). At issue is the
meaning of the phrase “is treated with an injection or injections.” It is a question of law which
we review de novo. See American Airlines v.
Hervey, 2001 OK 74, ¶11, 33 P.3d 47, 50.
¶6 The primary goal of any inquiry into the
meaning of statutory language is to ascertain
The Oklahoma Bar Journal
401
the intent of the legislature. Twin Hills v. Town
of Forest Park, 2005 OK 71, ¶6, 123 P.3d 5, 6. In
the absence of ambiguity or conflict with
another enactment, our task is limited to applying a statute according to the plain meaning of
the words chosen by the Legislature, which
presumptively express that body’s intent.
Broadway Clinic v. Liberty Mutual Ins. Co., 2006
OK 29, ¶15, 139 P.3d 873, 877. Legislative intent
is not determined from isolated phrases in a
statute but from the whole act in light of its
general purpose and objective. Oklahoma Goodwill Industries, Inc., v. Oklahoma Employment
Security Commission, 2009 OK 55, ¶10, 219 P.3d
540, 543. When the language of the statute is
plain, it will be followed without further inquiry. Zoo Trust v. State ex rel. Public Employees Relations Board, 2007 OK 21, ¶6, 158 P.3d 461, 464.
So long as the language does not lead to absurdity, courts must resist reading words or elements into a statute that do not appear on its
face. Id.
¶7 An injured employee is entitled to TTD if
temporarily unable to perform his or her job or
any alternative work offered by the employer.
85A O.S. Supp. 2014 §45(A)(1). Generally, an
employee may not receive TTD in excess of 104
weeks. Id. An employer shall be entitled to terminate TTD when the injured employee (1) is
released from active medical treatment by the
treating physician, (2) misses three consecutive
medical treatment appointments without
excuse, (3) fails to comply with medical orders
of the treating physician, or (4) abandons
medical care. §45(A)(2). The ALJ may appoint
an independent medical examiner to determine if further medical treatment is reasonable
and necessary. Id. Thus, entitlement to TTD is
directly related to medical treatment.
¶8 It is also true that the period of TTD
allowed can be limited based upon both the
type of injury and the nature of the medical
treatment. For example, the allowance of 104
weeks of TTD provided by §45 is limited for
injuries that are of the soft tissue type.1 The
extent of the limitation depends upon the
medical treatment. The statute under review is
§62(A) and it provides as follows:
Notwithstanding the provisions of Section
45 of this act, if an employee suffers a nonsurgical soft tissue injury, temporary total
disability compensation shall not exceed
eight (8) weeks, regardless of the number
of parts of the body to which there is a nonsurgical soft tissue injury. An employee
402
who is treated with an injection or injections shall be entitled to an extension of an
additional eight (8) weeks. An employee
who has been recommended by a treating
physician for surgery for a soft tissue injury may petition the Workers’ Compensation Commission for one extension of temporary total disability compensation and
the Commission may order an extension,
not to exceed sixteen (16) additional weeks.
If the surgery is not performed within
thirty (30) days of the approval of the surgery by the employer, its insurance carrier,
or an order of the Commission authorizing
the surgery, and the delay is caused by the
employee acting in bad faith, the benefits for
the extension period shall be terminated and
the employee shall reimburse the employer
any temporary total disability compensation
he or she received beyond eight (8) weeks.
An epidural steroid injection, or any procedure of the same or similar physical invasiveness, shall not be considered surgery.
¶9 Section 62(A) deals with three treatment
categories for soft tissue injuries. The categories are (1) nonsurgical, (2) nonsurgical with an
injection or injections, and (3) surgical. The
allowed period of TTD compensation for soft
tissue injuries varies according to these treatment categories. Nonsurgical soft tissue injuries are limited to eight weeks of compensation. When nonsurgical treatment includes an
injection or injections, an additional eight
weeks are allowed. When a treating physician
recommends surgery for the soft tissue injury,
the employee may petition the Commission for
an extension that does not exceed sixteen
weeks of TTD compensation.
¶10 Claimant relies on §62 and argues he is
“an employee who is treated with an injection
or injections” and is therefore entitled to an
extension of an additional eight weeks of compensation. At the hearing, the ALJ admitted
into evidence a medical record of the hospital
emergency room. The record shows “medications administered” including:
sodium chloride 0.9% flush injection 3 mL
morphine 4 mg/mL injection 4 mg
ondansetron (ZOFRAN) 4 mg/2 mL injection 4 mg
loversol (OPTIRAY 350) 350 mg iodine/mL
injection 100 mL
The Oklahoma Bar Journal
Vol. 88— No. 7 — 3/4/2017
orphenadrine citrate (NORFLEX) 30 mg/
mL injection 60 mg
ondansetron (ZOFRAN) 4 mg/2 mL injection 4 mg
ketorolac (TORADOL) injection 15 mg
Beside each entry, the “route” is identified as
“IV.” At the hearing, Employer stipulated that
an IV was given in the emergency room and it
was related to the claimed injuries. The ALJ
made the following finding: “I find that the
intravenous therapy claimant received is not
an injection within the meaning of 85A O.S. §62
as to allow the claimant an additional eight (8)
weeks of temporary total disability. Therefore,
claimant’s request for an additional eight
weeks is denied.” The Commission affirmed
the order of the ALJ.
¶11 The AWCA does not directly define
“injection.” However, 85A O.S. Supp. 2013
§2(44) defines surgery: “’Surgery’ does not
include an injection, or the forcing of fluids
beneath the skin, for treatment or diagnosis.”
Claimant argues that an IV is an injection, taking into account §2(44), because an IV is a
method to force fluids beneath the skin for
treatment.
¶12 Employer contends that Claimant’s
interpretation of “injection” is not within the
intent of the Legislature and would lead to
illogical results, for example permitting extra
TTD if an injured worker were to receive a tetanus shot. Employer argues that TTD has long
been understood as the healing period and the
IV Claimant received was not part of a treatment regimen. In support of its proposition,
Employer points out that the last sentence of
§62(A) states, “An epidural steroid injection, or
any procedure of the same or similar physical
invasiveness, shall not be considered surgery.”
According to Employer, in order to receive
eight additional weeks for an injection, it
would have to be of similar physical invasiveness as an epidural steroid injection.
rary total disability compensation shall not
exceed eight (8) weeks, regardless of the
number of parts of the body to which there
is a nonsurgical soft tissue injury. A claimant who has been recommended by a treating physician for one or more injections
may petition the Court for one extension of
temporary total disability compensation
and the Court may order an extension, not
to exceed eight (8) additional weeks.
85 O.S. 2011 §332(K) (emphasis added). Under
the Code, an injured worker would not be
entitled to additional TTD unless the injection
had been recommended by a treating physician. The Legislature eliminated this requirement from §62(A). Under AWCA, an employee
who is treated with an injection or injections is
entitled to an eight-week extension. A recommendation by a treating physician is no longer
a requirement. We regard the difference in language as an intentional change because the
Legislature will not be presumed to have done
a vain and useless act in the promulgation of a
statute. Wilcoxson v. Woodward County EMS,
2010 OK CIV APP 50, ¶12, 231 P.3d 1170, 1175.
Under §332(K), now repealed, an injection
administered in a hospital emergency room
might not qualify as an injection “recommended by a treating physician.” We presume the
Legislature intentionally broadened the law,
and this undermines employer’s argument
that an injection pursuant to §62(A) must be a
part of a treatment regimen.
¶13 Before the enactment of the AWCA, the
Workers’ Compensation Code included a provision allowing for additional TTD based on a
recommendation of injections by a treating
physician:
¶14 No published opinion has decided what
constitutes an injection under §332(K) of the
Code or §62(A) of the AWCA. However, the
Wilcoxson court analyzed TTD limitations in
soft tissue injury cases according to 85 O.S.
Supp. 2005 §22(3)(d). The court concluded that
an epidural steroid injection is not a surgical
procedure and defined injection as “the introduction of a medicinal substance . . . into a part
of the body . . . by a needle and syringe or by a
syringe.” Wilcoxson, n.9, citing J.E. Schmidt,
M.D., Attorneys’ Dictionary of Medicine and
Word Finder (1991). It was after the Wilcoxson
decision [mandated May 6, 2010] that the Legislature enacted 85 O.S. 2011 §308(45) [effective
August 26, 2011] providing that surgery does
not include “an injection, or the forcing of fluids
beneath the skin, for treatment or diagnosis.”
In case of a nonsurgical soft tissue injury, in
which the employer has provided medical
care within seven (7) days after receipt of
oral or written notice of the injury, tempo-
¶15 Employer proposes that the Legislature’s
use of the conjunction “or” in the sentence
“Surgery does not include an injection, or the
forcing of fluids beneath the skin, for treatment
Vol. 88— No. 7 — 3/4/2017
The Oklahoma Bar Journal
403
or diagnosis” means the latter clause is not
necessarily included in the former. Employer’s
argument is that an IV, which might involve
forcing fluid beneath the skin, is not necessarily an “injection.” According to Employer, any
other construction of the sentence would render the word “or” meaningless.
¶16 We disagree with Employer. The conjunction “or” is sometimes utilized as “the
synonymous, equivalent, or substitutive character of two words or phrases.” Webster’s
Third New International Dictionary 1585
(1986). Accordingly, we conclude that the Legislature intended the phrase “the forcing of
fluids beneath the skin, for treatment or diagnosis” as a descriptive synonym of the word
“injection.”
¶17 We therefore hold that an “injection” as
used in §62(A) means the forcing of fluids
beneath the skin, for treatment or diagnosis.
This definition is the plain meaning of the
word injection. When the Legislature used the
word “injection” it did not specify subcutaneous, intravenous, intramuscular, epidural, or
any other degree of physical invasiveness. The
fact that §62(A) clarifies that an epidural steroid injection does not constitute surgery does
not mean an intravenous injection is not an
injection. As the Supreme Court stated in Zoo
Trust v. State ex rel. Public Employees Relations
Board, 2007 OK 21, ¶6, 158 P.3d 461, 464, courts
must resist reading words or elements into a
statute that do not appear on its face.
¶18 When Claimant was given an IV in the
emergency room, fluids were forced beneath
the skin for diagnosis or treatment. He was
treated with an injection pursuant to §62(A)
and is entitled to an additional eight weeks of
TTD. The order of the Workers’ Compensation
Commission, affirming the ALJ’s decision that
intravenous therapy is not within the meaning
of injection pursuant to 85A Supp. 2014 §62(A)
is REVERSED.
BUETTNER, V.C.J., P.J., and MITCHELL, J.,
concur.
BRIAN JACK GOREE, JUDGE:
1. For purposes of §62, “soft tissue injury” means damage to one or
more of the tissues that surround bones and joints. This includes, but
is not limited to sprains, strains, contusions, tendonitis, and muscle
tears. §62(B).
2017 OK CIV APP 9
TINKER FEDERAL CREDIT UNION,
Plaintiff, vs. JIMMY D. GRANT, Defendant/
404
Appellant, BISHOP L. BERRYHILL and
CAMDEN L. BERRYHILL, Defendants/
Appellees, and KENNETH BOULWARE,
SHEILA MOSLEY-BOULWARE and
SUZANN M. GRANT, Defendants.
Case No. 114,176. August 16, 2016
APPEAL FROM THE DISTRICT COURT OF
OKFUSKEE COUNTY, OKLAHOMA
HONORABLE DAVID MARTIN,
TRIAL JUDGE
AFFIRMED
Steven L. Parker, Tecumseh, Oklahoma, for
Defendant/Appellant
Luke Gaither, GAITHER LAW OFFICE, Henryetta, Oklahoma, for Defendants/Appellees
JANE P. WISEMAN, PRESIDING JUDGE:
¶1 Jimmy D. Grant appeals a trial court order
(1) finding he improperly converted funds
from a guardianship estate to his own account,
and (2) directing payment of the funds to the
beneficiaries of the ward’s account from which
the funds were taken. We are asked to address
whether this resulted from trial court error or
an abuse of discretion. We find it did not and
affirm its decision.
FACTS AND PROCEDURAL
BACKGROUND
¶2 On January 22, 2014, Grant was appointed
guardian of Kenneth Lee Boulware. Sheila
Mosley-Boulware had previously acted as
Boulware’s guardian. On January 7, 2015, Tinker Federal Credit Union (TFCU) filed a petition for interpleader stating Boulware had
checking and savings accounts at TFCU and
two minor children, BLB and CLB, were named
as beneficiaries of the accounts. TFCU alleged
that, since the time Grant presented the guardianship order to TFCU, he attempted to amend
the beneficiary designation for Boulware’s
accounts, but TFCU refused to change the beneficiary designations. TFCU alleged that after it
denied Grant’s request, “Grant transferred a
substantial portion of the assets held in Kenneth Lee Boulware’s accounts into accounts in
Jimmy D. Grant’s name alone” and designated
Suzann M. Grant as the beneficiary. Due to the
conflicting claims for the money from the
accounts, TFCU asserted it “cannot make payment or designation of the money and accounts
without assuming responsibility of determining doubtful questions of fact and law” and
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Vol. 88— No. 7 — 3/4/2017
being subject to lawsuits. TFCU asked that it be
allowed to pay the money to the clerk of court.
¶3 In its January 7, 2015 order, the trial court
directed Grant, Sheila Mosley-Boulware, BLB,
CLB, and Suzann Grant to respond to TFCU’s
interpleader request and state what claim they
have to the accounts or against other parties. A
hearing was set on February 9, 2015, for these
defendants to appear and show cause: (1) why
TFCU should not be discharged from the
action after paying the funds into court; (2)
why the “defendants should not be permanently enjoined from making any further claim
against TFCU related to the referenced account”; and (3) why the court should not
award TFCU its costs and attorney fees.
¶4 Sheila Mosley-Boulware answered stating
she “has no objection to the money being interplead . . . for the Court to determine how the
funds should be distributed” or for TFCU to be
discharged once the funds were deposited with
the court.
¶5 In his answer, Grant alleged that he is
Boulware’s guardian; Boulware made a will
(attached to Grant’s answer showing that it
had been witnessed by Grant’s attorney and
presented to a judge); all accounts remain in
Boulware’s name and would remain so until
his death; and Grant had no objection to the
discharge of TFCU. He asked to “be able to
transfer monies within [TFCU] as he sees fit
subject to supervision by [the court].”
¶6 Boulware’s will dated June 24, 2014,
leaves his two children $10 each. He leaves Tiffany Jo Berryhill, as trustee for CLB and BLB,
$10,000 for each child for his education, to be
held in trust until his 22nd birthday. The will
states that the trust funds have been established at TFCU. Boulware devises specific real
estate to Grant, leaves him a judgment recorded in Okfuskee County, and bequeaths Grant
the remainder and residue of his estate.
¶7 Suzann Grant filed an answer stating she
is Grant’s daughter, she is aware that Grant
made her the beneficiary of Boulware’s accounts, she makes no claim to any of the monies and does not expect to do so, and she has no
objection to the discharge of TFCU. She asked
the court to dismiss her from the lawsuit.
¶8 Tiffany Robertson,1 as mother and next
friend of BLB and CLB, filed an answer and a
cross claim against Grant admitting TFCU’s
claims and alleging Grant abused his power
Vol. 88— No. 7 — 3/4/2017
and breached his fiduciary duty to Boulware
when he tried to change the beneficiaries on
Boulware’s bank accounts. Robertson asked
that Grant be removed as guardian and
enjoined from any further use of Boulware’s
assets until his removal.
¶9 In its order on the interpleader petition,
the trial court directed TFCU to deposit the
contents of all of Boulware’s accounts into the
trust account of BLB’s and CLB’s attorney,
Luke Gaither. After depositing the funds, TFCU
was to be discharged from the action. Pursuant
to the order, TFCU deposited $165,621.48 into
Gaither’s trust account. The court awarded
$1,000 to the law firm representing TFCU to be
deducted from the funds deposited in Gaither’s account, and ordered Grant to retain two
of Boulware’s social security checks totaling
$6,000 plus $1,000 from the funds deposited in
Gaither’s account. Grant was ordered to pay an
outstanding attorney fee of $2,500 Boulware
owed to Jeremy Pittman arising from Boulware’s previous divorce action with Sheila
Mosley-Boulware.
¶10 According to Grant, Boulware died on
March 10, 2015. On April 16, 2015, Grant filed a
final report on Boulware’s guardianship. He
claimed in the report that Boulware directed
him to transfer the money from the checking
account which listed BLB and CLB as beneficiaries “to a different account where it would
not be subject to the payment on death beneficiary clause.” He stated that on November 18,
2014, he transferred $95,291.87 to an account so
CLB and BLB “would not be the beneficiaries
on a payment on death account.”
¶11 A hearing on the final account was held
on May 20, 2015. Grant testified that when the
court appointed him guardian, Boulware was
going through a divorce from Sheila Ann Mosley. Grant said that while he was taking care of
business at TFCU related to the divorce, he
learned that BLB and CLB “were beneficiaries
of [Boulware’s] entire account.” Grant stated
that Boulware had three accounts. He claimed
he had a conversation with Boulware about the
accounts, and as a result of that conversation,
Grant talked to a TFCU representative who
told him BLB and CLB “were beneficiaries over
the entire checking and everything.” Grant
“asked her about how we go about to get what
[Boulware] wanted done, and she said he
would have to come in and do it.” Grant testified, “I went back later and found out that I
could withdraw money out of the account as
The Oklahoma Bar Journal
405
long as I left some in the account for the boys,
which I did.” Grant stated he left $30,000 for
the boys. He claimed:
I transferred the rest into another account
with, it was supposed to have been headed
just like the old account with a different
beneficiary. And the lady that fixed it out
did not put Boulware’s own name on it,
and I asked her why. I said Mr. Boulware’s
name is not on here, and she said I can’t
put it on, I did not ask her a question of
why or when.
He acknowledged his name was on the account.
¶12 Grant told the court that he discovered
the content of Boulware’s will the same day he
passed away, March 10, 2015. He stated Boulware “probably made fifteen or twenty [wills]
in the last fifteen years [he has] known [Boulware].” Grant did not know exactly how much
Boulware left BLB and CLB, but Boulware
“always told [Grant] he left them fifteen thousand dollars apiece” which is “the reason
[Grant] left thirty thousand dollars with them
being the full beneficiaries on the death beneficiary, [so that] they could get them right at his
death time.”
¶13 On cross-examination, Grant testified he
did not know he was “practically the sole beneficiary of this estate until after Mr. Boulware’s
death.” He stated that Boulware told him to
change the beneficiary on the TFCU account
and to designate Grant’s daughter, Suzann
Grant, as the beneficiary. In his last two years,
Boulware was in a nursing home, and Grant’s
sister lived at Boulware’s farm and acted as a
“sitter.” Grant’s brother also lived in Boulware’s former home and the two “have cleaned
and taken care of the place and kept it up for
the rent.”
¶14 Grant acknowledged there were no
beginning account balances listed in the
accounting he provided the court. The court
questioned Grant about the amounts he
charged for services he provided for Boulware.
The court refused to approve the final accounting because “[g]uardians are not allowed to
charge for things” for which Grant charged
Boulware because “[g]uardians are paid by
statute.”
¶15 Arlene Gregg, a member service officer
for TFCU, testified that she talked to Boulware
about his accounts and Boulware told her he
wanted to leave BLB and CLB $10,000 each. On
406
cross-examination, she testified that at some
point, the transactions by Grant “raised a red
flag.” When Grant moved the funds from one
account to another, someone noticed and attorneys for TFCU then filed the interpleader
action. When asked about Boulware by the
court, Gregg stated she believed he was capable of managing his own affairs and “[h]e
didn’t have anyone speak for him” because
“[h]e spoke for himself.” On cross-examination, when asked if Boulware “knew how to
change his beneficiary on the payable on death
account,” Gregg replied, “He would know
how. He’s done it before.”
¶16 The journal entry of judgment filed July
14, 2015, in part provides:
2. All funds which are the subject of this
action were improperly converted from the
Guardianship estate into account(s) in the
Guardian’s name. Such improper conversion caused the Payable On Death beneficiaries of the Ward’s account, [BLB] and [CLB]
(minor children), to be excluded as beneficiaries while the Ward was incapacitated.
3. The transfer by the Guardian from the
Ward’s account to the Guardian’s account
was an improper transfer by a fiduciary.
4. [BLB] and [CLB] are the legal and rightful owners of all funds which were contained in the Ward’s account prior to the
Guardian’s withdrawal of said funds. The
Ward is now deceased, and all funds held
in the Gaither Law Office Trust Account
pursuant to this Court’s previous order
may be paid to [BLB] and [CLB].
¶17 Grant appeals.
STANDARD OF REVIEW
¶18 We will reverse an order in a guardianship case “only if it is clearly against the weight
of the evidence or contrary to law.” In re Guardianship of Holly, 2007 OK 53, ¶ 19, 164 P.3d 137.
Using this standard, we will review the record
for an erroneous interpretation or application
of the law or for an abuse of discretion.
ANALYSIS
¶19 Grant asserts it was error to award the
checking account to BLB and CLB. First, he
claims there was no evidence that there was a
payable on death account. This question does
not appear to be disputed because in the trial
court proceedings, Grant himself acknowl-
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Vol. 88— No. 7 — 3/4/2017
edged the account was a payable on death
account. Grant stated in his final report as
guardian that Boulware directed him “to transfer the money to a different account where it
would not be subject to the payment on death
beneficiary clause.” Grant claimed he transferred $95,291.87 “to a different account where
[BLB] and [CLB] would not be the beneficiaries
on a payment on death account.” He also testified he left $30,000 in the TFCU account because
BLB and CLB were “the full beneficiaries on
the death beneficiary.”
¶20 “Parties to an action on appeal are not
permitted to secure a reversal of a judgment
upon error which they have invited and acquiesced in, or to assume an inconsistent position
from that taken in the trial court.” Union Texas
Petroleum v. Corporation Comm’n of the State of
Oklahoma, 1981 OK 86, ¶ 36, 651 P.2d 652. The
Supreme Court explained:
The rule emanates from the very heart of
the purpose served by an appeal. In Breene
v. Crawford, 175 Okl. 186, 53 P.2d 244 (1935),
the Court held that a defendant will not be
allowed to shift his ground of defense on
appeal in order to present another defense
not presented nor relied upon in the trial
court. To allow such a traverse in theory at
the appellate level thwarts the very basis of
the appellate process. The purpose of an
appeal is not to present an opportunity for
a trial de novo, but to review the correctness of the rulings made upon the arguments of the trial court. The parties to an
action, having presented their case for
defense to the trial court upon a certain
theory, are bound thereby and will not be
permitted to change the theory of the case
upon appeal.
Id.
¶21 Grant’s claim that the account naming
BLB and CLB as beneficiaries was not a payable on death account is clearly inconsistent
with his position taken at trial. Although Grant
now complains there is no evidence that the
accounts were payable on death, he asserted
that the accounts were payable on death accounts in the guardian’s final accounting he
submitted to the court. He also testified that
TFCU told him the two boys were “beneficiaries of [Boulware’s] entire account,” “over the
entire checking and everything,” and that
Boulware had three accounts.2
Vol. 88— No. 7 — 3/4/2017
¶22 Title 6 O.S.2011 § 901 addresses “payable
on death” accounts and provides in part as follows:
A. When a deposit has been made or shall
hereafter be made in any bank in the names
of two or more persons, payable to any of
them or payable to any of them or the survivor, such deposit, or any part thereof, or
any interest thereon, may be paid to either
of the persons, whether one of such persons shall be a minor or not, and whether
the other be living or not; and the receipt or
acquittance of the person so paid shall be
valid and sufficient release and discharge
to the bank for any payment so made.
B. 1. When a deposit has been made or
shall hereafter be made in any bank using
the terms “Payable on Death” or “P.O.D.”,
such deposits shall be payable on the death
of the account owner to one or more designated P.O.D. beneficiaries, or to an individual or individuals named beneficiary if
living and if not living, to the named estate
of the beneficiary, notwithstanding any
provision to the contrary contained in Sections 41 through 57 of Title 84 of the Oklahoma Statutes. Each designated P.O.D.
beneficiary shall be a trust, an individual,
or a nonprofit organization exempt from
taxation pursuant to the provisions of the
Internal Revenue Code, 26 U.S.C., Section
501(c)(3).
2. A deposit account with a P.O.D. designation shall constitute a contract between the
account owner, (or owners, if more than
one) and the bank that upon the death of
the last surviving owner of the account,
and after payment of account proceeds to
any secured party with a valid security
interest in the account, the bank will hold
the funds for or pay them to the named
primary beneficiary or beneficiaries if living. If any named primary beneficiary is
not living, the share of that beneficiary
shall instead be held for or paid to the
estate of that deceased beneficiary unless
contingent beneficiaries have been designated by the account owner as allowed by
paragraph 4 of this subsection.
....
10. No change in the designation of a
named beneficiary shall be valid unless
executed by the owner of the fund and in
the form and manner prescribed by the
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407
bank; however, this section shall be subject
to the provisions of Section 178 of Title 153
of the Oklahoma Statutes.
¶23 Boulware’s establishment of the accounts
to be paid to the Berryhill children as beneficiaries is evidence of his gift of these funds to them
on his death. Grant tried to change the beneficiary designation, but TFCU refused to allow it.
Because Grant could not change the beneficiaries, he admittedly transferred $95,291.87 to an
account in his name.
¶24 “The whole theory of guardianships is to
protect the ward during his period of incapacity to protect himself.” Oyama v. California, 332
U.S. 633, 643-44, 68 S. Ct. 269, 274, 92 L. Ed. 249
(1948). “A guardian is a person appointed by
the court to take care of the person or property
of another.” 30 O.S.2011 § 1-105; see also Gomes
v. Hameed, 2008 OK 3, ¶ 22, 184 P.3d 479. A
guardian of property acts as a fiduciary and
must perform diligently and in good faith. 30
O.S.2011 § 1-121(B). A guardian must keep his
or her ward’s property safe. 30 O.S.2011 §
1-121(A).
¶25 The Supreme Court in In re Conservatorship of Spindle, 1986 OK 65, 733 P.2d 388, gave
the following succinct analysis of gifts from a
ward to a guardian:
In Lindsay v. Gibson, this Court relied upon
the case of Daniel v. Tolon [1916 OK 446, 157
P. 756], for the proposition that a gift made
by the ward to the conservator during the
term of the conservatorship was absolutely
void. In Daniel this Court had found that a
transaction between a guardian and his
minor ward, after the ward had reached
majority, was voidable during the time the
influence arising from the relationship of
guardian and ward continued. In that case
the evidence of overreaching and abuse of
influence by the guardian was abundant.
We went on in Daniel to state that any
transaction between the guardian and
ward by which the guardian benefits during the period of influence is presumptively invalid. However, it was also clearly
stated that this presumption, while weighty,
is rebuttable by sufficient proof.
Upon reconsideration of Daniel we interpret the holding there to be that the presumption of invalidity regarding dealings
between a guardian and ward continues
past the time when the legal relationship
may end and extends as long as the rela408
tionship of influence by the guardian and
dependence by the ward continues to exist.
Although the presumption is great, it does
not automatically invalidate any gift or
transaction. It is this presumption that is in
operation at all times during the existence of a
legal fiduciary relationship and past that time
as long as residual influence continues to flow
from the former relationship. Thus, at all times,
a transaction may be voidable, but it is not
automatically void.
Id. ¶¶ 7-8 (footnotes omitted and emphasis
added).
¶26 If we were to conclude that the transfer
of money from one account to another was a
gift to Grant, we would have to presume,
based on the fiduciary relationship, that the
gift was invalid, and Grant would then be
required to convince the court otherwise to
rebut the presumption. We see no basis on
which to find the trial court abused its discretion either in finding no gift was made or in
concluding Grant failed to overcome the presumption of invalidity. The only evidence in
support of Grant’s gift argument is his testimony; there is no other corroborating evidence
of a gift from Boulware to Grant. The evidence
shows Grant as guardian took funds from an
account in his ward’s name and placed them in
an account solely in his own name. It is the trial
court’s duty to weigh the evidence, determine
the witnesses’ credibility, and decide issues of
fact. See Gowens v. Barstow, 2015 OK 85, ¶ 26,
364 P.3d 644. It was well within the trial court’s
purview to accept or reject Grant’s testimony.
¶27 Arlene Gregg testified that Boulware
told her that he wanted to leave BLB and CLB
$10,000 each. Gregg stated Boulware was capable of managing his own affairs and “[h]e
didn’t have anyone speak for him” because
“[h]e spoke for himself.” She further testified
Boulware “knew how to change his beneficiary
on the payable on death account” because he
had done it before.
¶28 The evidence before the trial court was
simply that Grant took a large sum of money
from Boulware’s account and placed it in his
own account. There was evidence that, if Boulware had wanted to change the beneficiary on
the account, he knew how to accomplish that.
Boulware did not do so. Other than Grant’s
testimony, there is no evidence that Boulware
instructed him to transfer the money to Grant’s
account.
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Vol. 88— No. 7 — 3/4/2017
¶29 If believed by the trial court, the evidence clearly establishes that Grant improperly
converted funds belonging to Boulware. As
weighed by the trial court, the funds belonged
in the accounts listing BLB and CLB as beneficiaries and they are the rightful owners of the
accounts. It is hard to see how we could reach
the conclusion, as Grant urges, that the trial
court’s decision is against the clear weight of
the evidence.
¶30 Grant next argues the trial court cannot
make an award to minors. Title 6 O.S.2011 §
901(A), however, clearly allows a participant in
a payable on death account to be a minor.
¶31 Grant’s final argument is that the TFCU
account was part of the residuary estate, which
Boulware left to Grant in his will. As § 901
makes clear, the payable on death account is a
contract between TFCU and “the last surviving
owner of the account.” The account funds
passed directly to BLB and CLB outside the
will. See, e.g., In re Estate of Fields, 2002 OK CIV
APP 14, ¶¶ 11-12, 46 P.3d 176 (finding § 901
changed earlier case law “that a payable on
death designation did not meet the requirements for a testamentary disposition or of a
gift” and § 901 now “authorizes payable on
death designations for bank accounts”). These
funds are not part of Boulware’s probate estate.
¶32 None of the arguments presented for
reversal of the trial court’s decision persuades
us that there was an incorrect interpretation or
application of the law or that it resulted from an
abuse of discretion in weighing the evidence.
CONCLUSION
¶33 Finding no error or abuse of discretion,
we affirm the trial court’s decision.
¶34 AFFIRMED.
GOODMAN, C.J., and FISCHER, J., concur.
JANE P. WISEMAN, PRESIDING JUDGE:
1. Tiffany Robertson and Tiffany Jo Berryhill appear to be the same
person.
2. Tr., May 20, 2015, hearing, pp. 7-8.
3. Title 15 O.S.2011 § 178 addresses, “Providing Death Benefits Contracts of Designating Former Spouse as Beneficiary - Effect of
Divorce or Annulment,” which is not at issue here.
Vol. 88— No. 7 — 3/4/2017
The Oklahoma Bar Journal
409
Disposition of Cases
Other Than by Published Opinion
COURT OF CRIMINAL APPEALS
Monday, February 6, 2017
C-2016-500 — Stacey Donnell Payne, Petitioner, entered a blind plea of guilty to the
crimes of Conspiracy to Commit Aggravated
Trafficking in a Controlled Dangerous Substance
(Count 1), Trafficking in a Controlled Dangerous
Substance (Count 2), and Distribution of a Controlled Dangerous Substance (Methamphetamine) (Counts 3 through 8), each After Former
Conviction of Two or More Felonies, in Case
No. CF-2015-51 in the District Court of Kay
County. The Honorable David R. Bandy, Associate District Judge, accepted Payne’s plea and
sentenced him to twenty-five years imprisonment on each count and ordered the sentences
on all counts to be served concurrently. In a pro
se letter to the court, Payne timely requested to
withdraw his plea and for the appointment of
new counsel. The district court appointed
Payne conflict free counsel, held a hearing on
Payne’s request to withdraw plea, and denied
Payne’s motion. Payne filed a Petition for Writ
of Certiorari on November 28, 2016, followed
by a Motion to Waive Certain Issues for Consideration on Appeal filed on December 8,
2016. Payne’s Motion to Waive Certain Issues
for Consideration on Appeal is GRANTED. His
Petition for Writ of Certiorari is DENIED. The
Judgment and Sentence of the District Court is
AFFIRMED. Opinion by: Johnson, J.; Lumpkin,
P.J., concurs; Lewis, V.P.J., concurs; Smith, J.,
concurs; Hudson, J., concurs.
F-2015-1100 — Leobardo Pererz, Appellant,
was tried by jury for the crime of Trafficking in
Illegal Drugs in Case No. CF-2014-6230 in the
District Court of Oklahoma County. The jury
returned a verdict of guilty and recommended
as punishment life imprisonment and a
$200,000 fine. The trial court sentenced accordingly. From this judgment and sentence Leobardo Pererz has perfected his appeal. The
Judgment and Sentence is AFFIRMED. Opinion by: Lumpkin, P.J.; Lewis, V.P.J., Concur;
Johnson, J., Concur; Smith, J., Concur; Hudson,
J., Concur.
410
F-2015-999 — Jason Edward McGrath, Appellant, entered a plea of guilty on to one count of
Failure to Register as a Sex Offender in the
District Court of Caddo County, Case No. CF2013-244. The Honorable David A. Stephens,
Special Judge, accepted the plea but deferred
sentencing until March 4, 2019. In accordance
with the plea agreement, Appellant was subject to the standard rules and condition of probation, which included supervision by the Department of Corrections for two (2) years. On
September 23, 2015, the State filed an Application to Accelerate Deferred Judgment alleging
Appellant had violated his probation. At a
hearing on November 3, 2015, the trial court
sentenced Appellant to five (5) years imprisonment, with credit for time served. From this
judgment and sentence Jason Edward McGrath
has perfected his appeal. The Order of the
District Court of Caddo County accelerating
Appellant’s deferred sentence in Case No.
CF-2013-244 is AFFIRMED. Opinion by:
Lumpkin, P.J.; Lewis, V.P.J., Concur; Johnson,
J., Concur in Result; Smith, J., Concur in Result;
Hudson, J., Concur.
Tuesday, February 7, 2017
C-2016-699 — Travis Wayne Bentley, Petitioner, pled guilty to the crimes of Count 1 First
Degree Manslaughter, Count 2 - Driving Under
the Influence of Drugs Resulting in Great
Bodily Injury, and Count 3 - Possession of
Drug Paraphernalia in Case No. CF-2015-1240
in the District Court of Cleveland County. Petitioner expressed dissatisfaction with his
appointed counsel, and on May 4, 2016, the
district court appointed new counsel to consult
with Petitioner. At a hearing on May 25, 2016,
Petitioner, after consulting with new counsel,
chose not to withdraw his plea. The trial court
sentenced Bentley to 25 years imprisonment on
Count 1, 10 years on Count 2 and one year on
Count 3, all sentences to be served concurrently with one another. Petitioner subsequently moved to withdraw his plea. A second conflict attorney was appointed to assist him in the
plea-withdrawal process. At a hearing held
July 29, 2016, the court denied Petitioner’s
request to withdraw his plea. From this denial
The Oklahoma Bar Journal
Vol. 88— No. 7 — 3/4/2017
of his motion to withdraw plea, Travis Wayne
Bentley has perfected his certiorari appeal. District Court’s denial of Petitioner’s Motion to
Withdraw Plea AFFIRMED; certiorari DENIED.
Opinion by: Smith, J.; Lumpkin, P.J., concur;
Lewis, V.P.J., concur; Johnson, J., concur; Hudson, J., concur.
Wednesday, February 8, 2017
F-2015-544 — Henry David Laird, Appellant,
was tried by jury for the crime of Murder in the
First Degree, in Case No. CF-2013-310, in the
District Court of Tulsa County. The jury
returned a verdict of guilty and recommended
as punishment life imprisonment. The trial
court sentenced accordingly. From this judgment and sentence Henry David Laird has
perfected his appeal. AFFIRMED. Opinion by:
Hudson, J.; Lumpkin, P.J., Concurs; Lewis,
V.P.J., Concurs; Johnson, J., Concurs; Smith, J.,
Concurs.
Thursday, February 9, 2017
C-2016-40 — Deandre Lashawn Henderson,
Petitioner, entered a negotiated Alford plea in
Seminole County District Court, Case No. CF2013-473 before the Honorable Gayla Arnold,
Special Judge, to Counts 1-4: Assault with a
Dangerous Weapon, After Former Conviction
of a Felony; and Count 5: Possession of a Firearm, After Former Conviction of a Felony. In
accordance with the plea agreement, Petitioner
was sentenced to twenty years imprisonment
each on Counts 1-4 and to ten years imprisonment on Count 5. Also pursuant to the plea
agreement, Judge Arnold ran the sentences for
all five counts concurrently each to the other
and concurrently to Petitioner’s sentences in
Seminole County Case Nos. CF-2010-174, CF2010-213 and CF-2010-297. Judge Arnold granted Petitioner credit for time served. The State
also agreed in exchange for Petitioner’s plea to
dismiss Petitioner’s pending felony charge of
Placing Bodily Fluids on a Police Officer in
Seminole County Case No. CF-2015-144. Petitioner filed an application to withdraw his plea
and after the hearing before the Honorable
Gordon Allen, Associate District Judge, Petitioner’s application was denied. Petitioner
now seeks a writ of certiorari. The Petition for
Writ of Certiorari is GRANTED. The Judgments and Sentences of the District Court as to
Counts 1 and 5 are AFFIRMED. The Judgments
and Sentences as to Counts 2, 3 and 4 are
REVERSED AND REMANDED WITH INSTRUCTIONS TO DISMISS. Opinion by: HudVol. 88— No. 7 — 3/4/2017
son, J.; Lumpkin, P.J., Concurs in Results;
Lewis, V.P.J., Concurs in Results; Johnson, J.,
Concurs; Smith, J., Concurs.
Tuesday, February 14, 2017
C-2016-774 — Petitioner Robert James King
was charged with First Degree Burglary (Count
1); Kidnapping (Count II) and First Degree
Robbery with a Firearm (Count III) in the District Court of Seminole County, Case No.
CF-2015-202. On May 25, 2016, Petitioner entered blind pleas of guilty to all counts before
the Honorable Timothy Olsen, Associate District Judge. The pleas were accepted and on
July 19, 2016, Petitioner was sentenced to
imprisonment for twenty (20) years in each of
Counts I and II, and thirty-five (35) years in
Count III, all sentences to run concurrently.
From this judgment and sentence Robert James
King has perfected his appeal. The order of the
district court denying Petitioner’s motion to
withdraw guilty plea is AFFIRMED. Opinion
by: Lumpkin, P.J.; Lewis, V.P.J., Concur; Johnson, J., Concur; Smith, J., Concur; Hudson, J.,
Concur.
Wednesday, February 15, 2017
C-2016-152 — Rodrigo Alonso Vazquez, Petitioner, entered negotiated guilty pleas to the
following charges in the District Court of Oklahoma County, in Case No. CM-2015-1982 Count
1: Domestic Abuse (Assault and Battery), and
Count 2: Violation of a Protective Order. Petitioner was sentenced to one year in the county
jail on both counts. Sentences for both counts
were ordered to run concurrent each to the
other and concurrent with the sentences imposed in Oklahoma County District Court
Case Nos. CF-2015-5764, CF-2012-3959 and
CF-2010-1405. Also, in Case No. CF-2015-5764
Count 1: Burglary in the First Degree; Count 2:
Domestic Abuse by Strangulation; Count 3:
Violation of a Protective Order; and Count 4:
Assault and Battery. Petitioner was sentenced
to twenty-five years imprisonment for Counts
1 and 2, with all but the first fifteen years suspended, one year in the county jail on Count 3,
and ninety days in the county jail on Count 4.
Sentences for all four counts were ordered to
run concurrent each to the other and concurrent with the sentence imposed in CF-20123959, CF-2010-1405 and CM-2015-1982. The
court further granted Petitioner credit for time
served. Petitioner filed a pro se motion seeking
to withdraw his guilty pleas. After a hearing
before the Honorable Ray Elliott, District
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411
Judge, the motion was denied. Petitioner now
seeks a writ of certiorari. The Petition for Writ
of Certiorari is DENIED. Opinion by: Hudson,
J.; Lumpkin, P.J., Concurs; Lewis, V.P.J., Concurs; Johnson, J., Concurs; Smith, J., Concurs.
F-2015-1019 — Appellant, Joshua Ray Hudson, was charged May 17, 2012, in Oklahoma
County District Court Case No. CF-2012-3086,
with Count 1 – Driving Under the Influence, a
felony, Count 2 – Operating a Motor Vehicle
Taxes Due The State, and Count 3 – Operating
a Motorcycle Without License and Endorsement. In Oklahoma County District Court Case
No. CF-2013-3005 on May 20, 2013, Appellant
was charged with Human Trafficking, a felony.
On July 3, 2013, in Case No. CF-2012-3086,
Appellant entered a plea of guilty to Count 1;
Counts 2 and 3 were dismissed. In Case No.
CF-2013-3005 Appellant entered a plea of guilty
to a lesser charge of Violation of the Oklahoma
Computer Crimes Act. Sentencing was deferred
to April 3, 2022, with rules and conditions of
supervised probation. On July 17, 2015, the
State filed an application to accelerate Appellant’s deferred sentences. Following an acceleration hearing, Appellant’s deferred sentences
were accelerated. He was sentenced to five
years in each case, with credit for time served.
The sentences were ordered to run consecutively. Appellant was also ordered to serve a
term of post-imprisonment supervision for a
period of 9-12 months following confinement
under conditions prescribed by the Department of Corrections. Appellant appeals from
the acceleration of his deferred sentences. The
acceleration of Appellant’s deferred sentence
are AFFIRMED. Opinion by: Hudson, J.; Lumpkin, P.J., Concurs; Lewis, V.P.J., Concurs; Johnson, J., Concurs; Smith, J., Concurs.
Thursday, February 16, 2017
C-2016-188 — On August 1, 2013 Petitioner
Harlan Dwayne Holloway entered a plea of
guilty to the crimes of Count 1: Driving Under
the Influence of Alcohol (Felony), After Former
Conviction of Two or More Felonies; Count 2:
Driving with a Suspended License; and Count
3: Transporting Open Bottle or Container of
Liquor, in Seminole County District Court,
Case No. CF-2012-161. The Honorable George
Butner, District Judge accepted Holloway’s
plea and deferred sentencing to allow his entry
into the Seminole County Drug Court program. Under the terms of his plea agreement, if
Holloway satisfactorily completed the drug
court program the case would be dismissed
412
and expunged. If he was terminated from the
drug court program, however, Holloway
would be sentenced to twenty years imprisonment on Count 1; one year imprisonment on
Count 2; and six months in the county jail on
Count 3, all to run concurrently. The State filed
an Application to Terminate Offender from
Drug Court and Motion for Immediate Sentencing. On February 22, 2016, upon completion of the hearing on the State’s application,
the district court terminated Holloway from
the drug court program and sentenced him in
accordance with the previously entered plea
agreement. The district court also imposed two
years of post-imprisonment supervision, ordered all three counts to run concurrent and
also ordered credit for time served. Holloway’s
counsel filed a motion to withdraw guilty plea
in this case which was denied at the conclusion
of the prescribed hearing. Petitioner now seeks
a writ of certiorari. The Petition for Writ of Certiorari is GRANTED. The district court’s order
of two years of post-imprisonment supervision
on Count 1 is MODIFIED to one year and, as so
modified, the Judgments and Sentences of the
District Court are AFFIRMED. Opinion by: Hudson, J.; Lumpkin, P.J., Concurs in Results; Lewis, V.P.J., Concurs; Johnson, J., Concurs; Smith,
J., Concurs.
F-2016-144 — Harlan Dwayne Holloway,
Appellant, appeals from an order entered by
the Honorable George Butner, District Judge,
granting the State’s application to terminate
him from the Drug Court Program, in Case No.
CF-2012-161, and sentencing him to twenty
years imprisonment on Count 1; one (1) year
imprisonment on Count 2; and six (6) months
in the county jail on Count 3, under the terms
of the original plea agreement. Judge Butner
also imposed two years of post-imprisonment
supervision, ordering all three counts to run
concurrent and also ordered credit for time
served. The district court’s order terminating
Appellant from the Drug Court program and
imposing sentence in Seminole County District
Court Case No. CF-2012-161 is AFFIRMED.
Opinion by: Hudson, J.; Lumpkin, P.J., Concurs; Lewis, V.P.J., Concurs; Johnson, J., Concurs; Smith, J., Concurs.
Friday, February 17, 2017
F-2015-1104 — Robert Edward Simpson,
Appellant, pled guilty March 9, 2015, in Lincoln County District Court Case No. CF-2014293 to Count 1 – Burglary in the First Degree
and Count 2 – Larceny of Automobile, after
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former conviction. Pursuant to a plea agreement, Simpson entered the Lincoln County
Drug Court Program. The State filed an application to terminate or revoke Simpson from the
Drug Court Program on April 1, 2015. A termination hearing was held on December 2, 2015,
before the Honorable Cynthia F. Ashwood,
District Judge. Judge Ashwood found Simpson
violated the terms and conditions of the Drug
Court Program Contract and revoked his participation in the program. Simpson was sentenced to ten years imprisonment and a $300.00
fine on each count. The sentences were ordered
to run concurrently. Appellant appeals from
his termination from Drug Court. Appellant’s
termination from Drug Court is AFFIRMED.
Opinion by: Johnson, J.; Lumpkin, P.J.: Concur;
Lewis, V.P.J.: Concur; Smith, J.: Concur; Hudson, J.: Concur.
F-2016-73 — Joseph Allen Brown, Appellant,
was tried by jury for the crimes of First Degree
Murder and Reckless Conduct with a Firearm
in Case No. CF-2015-1238 in the District Court
of Tulsa County. The jury returned a verdict of
guilty and recommended as punishment life
imprisonment for the Murder count and six
months in the county jail and a $500 fine on the
Reckless Conduct count. The trial court sentenced accordingly. From this judgment and
sentence Joseph Allen Brown has perfected his
appeal. AFFIRMED. Opinion by: Smith, J.;
Lumpkin, P.J., concur; Lewis, V.P.J., concur;
Johnson, J., concur; Hudson, J., concur.
COURT OF CIVIL APPEALS
(Division No. 1)
Friday, February 3, 2017
114,175 — (Cons.w/114,183) Michael D.
Galier, Plaintiff/Appellee, vs. Murco Wall
Products, Inc., and Welco Manufacturing Company, Defendants/Appellants, and Red Devil
Corporation, Defendant. Appeal from the District Court of Oklahoma County, Oklahoma.
Honorable Bryan C. Dixon, Trial Judge. In this
consolidated appeal, Defendants/Appellants,
Murco Wall Products, Inc. (Murco) and Welco
Manufacturing Company (Welco), seek review
of the trial court’s judgment based on a jury
verdict in favor of Plaintiff/Appellee, Michael
D. Galier. We find no error in the conduct of the
trial, and the jury’s verdict is supported by
competent evidence. The judgment is affirmed.
AFFIRMED. Opinion by Goree, P.J.; Bell, J., and
Swinton, J. (sitting by designation), concur.
Vol. 88— No. 7 — 3/4/2017
114,525 — Diana J. Fazzini, Plaintiff/Appellee, vs. Dan Fazzini, Defendant/Appellant.
Appeal from the District Court of Tulsa County, Oklahoma. Honorable Linda G. Morrissey,
Trial Judge. Husband contends the trial court
abused its discretion in awarding Wife attorney fees based solely on her status as the prevailing part. Pursuant to Finger v. Finger, 1996
OK CIV APP 91, 923 P.2d 1195, the trial court
considered the totality of the circumstances
leading up to, and including, the present action
for which attorney fees are sought. Although it
considered that both parties had the means to
pay the attorney fees, it also considered the
outcome of the action — that wife prevailed,
and determined that Husband made subsequent litigation more vexatious than it needed
to be. The trial court considered all equitable
factors required to determine Wife’s entitlement to trial-related attorney fees, and in balancing the equities, correctly determined Wife
was entitled to attorney fees based on circumstances leading up to and including the subsequent action for which attorney fees are being
sought. The trial court did not abuse its discretion in awarding trial-related attorney fees to
Wife. Husband complains that the only appealrelated attorney fees which are compensable
are for those tasks related to the preparation of
the appeal and record, responding to the motion to dismiss appeal, and filing the motion
for entitlement to appeal-related attorney fees.
Exhibit A, a client ledger detailing time spent
and tasks performed and attached to Wife’s
Motion for Hearing to Determine AppealRelated Attorney Fees, demonstrates that the
attorney fees Wife sought were for the very
tasks which Husband states are compensable.
Husband’s argument is without merit. Husband also submits that Wife violated 12 O.S.
2011 §696.4 by failing to file an application in
the trial court for appeal-related attorney fees
setting forth the amount requested prior to the
hearing. Wife filed her Motion for Hearing to
Determine Appeal-Related Attorney Fees and
served the motion on Husband by mail. Nevertheless, Husband claims Wife’s failure to file a
separate fee application setting forth the amount
of appeal-related fees she sought resulted in substantial prejudice to him. In Exhibit A, Wife’s
counsel had circled the tasks for which she was
seeking appeal-related attorney fees. Husband
does not argue that he was not served by mail
Wife’s motion and the attached Exhibit A. The
information regarding the fees which Wife
claimed as reasonable appeal-related attorney
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413
fees was available to Husband prior to the
hearing; he did not take his copy of Exhibit A
with him to the hearing. As such, Husband has
not demonstrated any prejudice to him. The trial
court did not abuse its discretion in awarding to
Wife trial-related attorney fees in the amount of
$2,652.50. State ex. rel Burk v. City of Oklahoma
City, 1979 OK 115, ¶22. AFFIRMED. Opinion by
Goree, P.J.; Joplin, J., and Bell, J., concur.
115,028 — Dave Watkins, an Individual,
Plaintiff/Appellant, vs. Elmer Hemphill, John
Hemphill and Hemphill Corporation, now
Hempill, LLC, Defendants/Appellees. Appeal
from the District Court of Tulsa County, Oklahoma. Honorable Mary Fitzgerald, Trial Judge.
Plaintiff/Appellant, Dave Watkins, seeks review of the trial court’s order granting summary judgment in favor of Defendants/Appellees, Elmer Hemphill, John Hemphill, and
Hemphill Corporation, now Hemphill, LLC
(collectively the Hemphills). We affirm because
Watkins failed to establish a contested issue of
material fact related to his claims for abuse of
process and malicious prosecution. AFFIRMED.
Opinion by Goree, P.J.; Joplin, J., and Bell, J.,
concur.
115,104 — Beau D. Hughes, a single person,
David E. Hughes and Juanita F. Hughes, husband and wife, Plaintiffs/Appellants, vs.
Grand River Dam Authority, a governmental
agency of the State of Oklahoma, Defendant/
Appellee. Appeal from the District Court of
Mayes County, Oklahoma. Honorable Terry H.
McBride, Judge. Plaintiffs seek review of the
trial court’s order granting the motion to dismiss of Defendant on that part of Plaintiffs’
claims for inverse condemnation arising from
Defendant’s construction of a road across
Plaintiffs’ property under color of an easement
by condemnation. In the present case, Plaintiffs
alleged the taking of their property by Defendant’s construction of a road, using the dirt
from Plaintiffs’ property and causing damage
to their property without compensation. The
precise location of the road in relation to the
easement by condemnation held by Defendant
— whether within or outside the easement —
is not established by the pleadings. The extent
of the use of Plaintiffs’ dirt in the construction
of the road, and/or whether Defendant unnecessarily used or damaged property either within or immediately adjacent to the easement, is
likewise not borne out by the pleadings. Furthermore, the trial court denied Defendant’s
motion to dismiss as to the Plaintiffs’ claim for
414
misuse or over use of the Defendant’s easement rights, and the misuse or over use of an
easement by the condemner may constitute a
compensable taking. The issue of the existence
of a taking is at the core of both the inverse
condemnation claim and the misuse/over use
claim. We cannot say beyond doubt that Plaintiffs can prove no set of facts entitling them to
relief. The issue of the evidence of a taking and
the value of the land taken are issues on which
Plaintiffs bear the burden of persuasion, but
those issues are not susceptible to summary
disposition. Plaintiffs have demanded trial by
jury, and the contested issue of the existence of
a taking must be submitted for determination
to the jury as trier of fact. REVERSED AND
REMANDED. Opinion by Joplin, J.; Goree, P.J.,
and Bell, J.,
115,224 — Earl-Le Dozer Service, L.L.C. and
National American Insurance Company, Petitioners, vs. Preston Wayne Haulcomb and The
Workers’ Compensation Commission, Respondents. Proceeding to Review an Order of The
Workers’ Compensation Commission. Petitioners, Earl-Le Dozer Service, LLC, and National
American Insurance Company (collectively
Employer), seek review of an order of the
Workers’ Compensation Commission which
affirmed the order of its administrative law
judge (ALJ) granting compensability, temporary total disability and medical treatment to
Respondent, Preston Wayne Haulcomb (Claimant). We affirm because the Commission’s
award is neither affected by error of law nor
clearly erroneous. AFFIRMED. Opinion by
Goree, P.J.; Joplin, J., and Bell, J., concur.
(Division No. 2)
Tuesday, February 14, 2017
115,403 — Wells Fargo Bank, N.A., Successor
by Merger to Wells Fargo Bank Minnesota, N.A.,
as Trustee, Plaintiff/Appellee, v. Richard E. Turman and Tara R. Turman, Defendants/Appellants, and John Doe, as Occupant of the Premises, Jane Doe, as Occupant of the Premises and
Citibank, N.A., Defendants. Appeal from an Order of the District Court of Oklahoma County,
Hon. Thomas E. Prince, Trial Judge. The defendants, Richard E. Turman and Tara R. Turman
(together, Turman), appeal an Order denying
their Motion to Vacate a summary judgment
entered in favor of the plaintiff, Wells Fargo
Bank, NA, Successor by Merger to Wells Fargo
Bank Minnesota, NA, as Trustee. Turman executed a promissory note payable to First Franklin Financial Corporation (FFFC). The promis-
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Vol. 88— No. 7 — 3/4/2017
sory note is secured by a real estate mortgage.
Due to default by Turman, Wells Fargo filed this
action for in rem foreclosure. The petition alleged
that Wells Fargo is entitled to enforce the promissory note both prior to and subsequent to the
filing of the action. The correctness of the trial
court’s denial of the motion to vacate depends
upon whether the trial court correctly entered
the underlying summary judgment. Wells Fargo’s summary judgment materials show there is
no disputed fact about: (1) Turman executed the
promissory note; (2) The promissory note contains an unconditional promise to pay; (3) The
promise to pay is a sum certain or fixed amount
of money; (4) The promissory note is payable at
a definite time; (5) The promissory note is payable to order; (6) Wells Fargo is the entity entitled to enforce the obligation; (7) A default has
occurred; and (8) Principal, interest, and attorney’s fees as called for in the note or draft are
due and payable. Wells Fargo established each
of the elements of its claim and supported its
motion with evidentiary materials showing no
disputed factual issues. The burden shifted to
Turman to demonstrate that one or more facts
were in dispute. The response does not raise any
questions of fact and consists solely of unsupported allegations and does not suffice to defeat
summary judgment. Moreover, summary judgment is a recognized procedure, available to
both sides in litigation, and does not deprive any
party of due process of law. Therefore, the trial
court did not err by granting summary judgment. Consequently, the trial court did not err by
refusing to vacate its judgment. AFFIRMED.
Opinion from Court of Civil Appeals, Division
II, by Rapp, J.; Fischer, P. J., and Goodman, J.,
concur.
(Division No. 3)
Thursday, February 2, 2017
114,018 — In Re the Marriage of Manos: Carol
Ann Manos, Petitioner/Appellee, vs. Johnny Allen Manos, Respondent/Appellant. Appeal from
the District Court of Seminole County, Oklahoma. Honorable Timothy L. Olsen, Judge. Respondent/Appellant Johnny Allen Manos (Husband)
appeals from the trial court’s Decree of Dissolution. Husband challenges the $259,360.00 awarded to Petitioner/Appellee Carol Ann Manos
(Wife) as alimony in lieu of property, as well as
the $12,500.00 in attorney fees awarded to
Wife. We find the court properly found certain
property in Seminole County was marital
property subject to equitable distribution.
However, the real property upon which the
marital home was situated was Husband’s
Vol. 88— No. 7 — 3/4/2017
separate property and, thus, should not have
been used to calculate the alimony in lieu of
property award. The court did not abuse its
discretion by awarding attorney fees to Wife.
We AFFIRM IN PART, REVERSE IN PART, and
REMAND FOR FURTHER PROCEEDINGS.
Opinion by Mitchell, P.J.; Buettner, C.J., and
Swinton, J., concur.
114,258 — In Re the Marriage of Terrell: Alice
Sue Terrell, Petitioner/Appellant, vs. Alan Ray
Terrell, Respondent/Appellee. Appeal from
the District Court of McClain County, Oklahoma. Honorable Charles Gray, Judge. In this
post-divorce proceeding, Petitioner/Appellant
Alice Sue Terrell (Wife) appeals from an order
nunc pro tunc, which found that she was not
entitled to earnings and interest accrued after
the date of separation on her portion of Respondent/Appellee Alan Ray Terrell’s (Husband)
Thrift Savings Plan (TSP). A post-decree order
awarded Wife earnings and interest past the
date of separation. A subsequent order nunc pro
tunc struck that portion of the order, found that
Wife does not receive earnings and interest
past the date of separation, and ordered Wife
to return the $115,341.71 she had removed from
the TSP pursuant to the post-decree order.
Because the parties’ divorce decree awarded
“any amounts” in the TSP to Husband after the
date of separation, we AFFIRM and REMAND
FOR FURTHER PROCEEDINGS. Opinion by
Mitchell, P.J.; Buettner, C.J., and Swinton, J.,
concur.
114,395 — Cobblestone Creek Management
Company, LLC, Plaintiff, vs. Kenneth Komiske
and Teri Komiske, Defendants, and City of
Norman, a municipal corporation, Plaintiff,
vs. Kenneth Komiske, Teri Komiske, Kelly J.
Henderson, Cobblestone Creek Management
Company, and Cobblestone Event Center,
LLC, Defendants, and Roy Donovan, Petra
Klein, Evgeny Fedorovich, Darrel E. Schreiner,
Evelyn F. Schreiner, Theunis Frederick Steyn,
Elizabeth Frederick Steyn, Sinyu Dai and
XuGuang Wang, Plaintiffs/Counter-Defendants, and Ernest B. Helin, Karen J. Helin, Ronald H. James, Barbara Ann James, Kenneth
Komiske, Teri Komiske, Larry L. McHughes,
Trustee of the Larry L. McHughes Revocable
Trust, Jesse Smith, Abby Smith, Chad T.
Thrailkill and April A. Thrailkill, Plaintiffs/
Counter-Defendants/ Appellants, vs. Cobblestone Creek Management Company, LLC,
Larry Denny and Michael C. Rainer, Defendants/Counter-Claimants/Appellees, and Cobblestone Creek Golf Club, LLC, Cobblestone
The Oklahoma Bar Journal
415
Creek Homeowners Association, Cobblestone
Event Center, Wayne Veal, Tracy Veal, Anna
Moore and Thad Moore, Defendants. Appeal
from the District Court of Cleveland County,
Oklahoma. Honorable George W. Butner, Judge.
Plaintiffs/Appellants Ernest B. Helin, Karen J.
Helin, Ronald H. James, Barbara Ann James,
Kenneth Komiske, Teri Komiske, Larry L. McHughes, Trustee of the Larry L. McHughes
Revocable Trust, Jesse Smith, Abby Smith,
Chad T. Thrailkill and April A. Thrailkill (collectively, Appellants) appeal the trial court’s
award of prevailing party attorney fees and
costs to Defendants/Appellees Cobblestone
Creek Management Company, LLC, (CCMC),
Larry Denny and Michael C. Rainer. In a previously mandated companion case, we affirmed
the underlying summary judgment in favor of
Denny and Rainer while we affirmed in part
and reversed in part the summary judgments
in favor of CCMC. Accordingly, the judgment
is not final and the award of attorney fees is
premature. We AFFIRM IN PART, REVERSE
IN PART, and REMAND FOR FURTHER PROCEEDINGS. Opinion by Buettner, C.J.; Mitchell, P.J., and Swinton, J., concur.
Thursday, February 16, 2017
114,783 — Multiple Injury Trust Fund, Petitioner, vs. Paul Jordan and The Workers’
Compensation Court of Existing Claims, Respondents. Proceeding to Review an Order of
the Workers’ Compensation Court. Honorable David P. Reid, Judge. Petitioner Multiple
Injury Trust Fund (the Fund) sought review of
an order of the Workers’ Compensation Court
of Existing Claims (“Workers’ Compensation
Court”) awarding Respondent Paul Jordan
(“Claimant”) permanent total disability (“PTD”)
benefits against the Fund. The amputation of
Claimant’s small toe on his right foot qualified
him as a “physically impaired person” as defined
in 85 O.S. Supp. 2005 §171. Further, the trial
court’s order which awarded Claimant PTD
benefits based on his combined disabilities was
supported by competent evidence. The order is
SUSTAINED. Opinion by Mitchell, P.J.; Buettner,
C.J., and Swinton, J., concur.
114,977 — Shirley Wishon, Plaintiff/Appellee,
vs. Brian Sanders, Amy L. Sanders, and GBR
Cattle Company, LLC, an Oklahoma Limited
Liability Company, and GBR Cattle Company,
L.L.C., Defendants/Appellants. Appeal from the
District Court of Seminole County, Oklahoma.
Honorable Timothy L. Olsen, Judge. Defendants/Appellants Brian Sanders, Amy L. Sand416
ers, GBR Cattle Company, LLC and GBR Cattle
Company, L.L.C. appeal from a summary judgment in favor of Plaintiff/Appellee Shirley
Wishon (Wishon) in Wishon’s quiet title action.
After de novo review, we find there is no substantial controversy as to any material fact, and the
court properly entered judgment as a matter of
law. Because we find no reversible errors of law
and the trial court’s Order sets forth extensive
findings of fact and conclusions of law adequately explaining its decision, we affirm
under Oklahoma Supreme Court Rule 1.202
(d), 12 O.S. 2011, Ch. 15, App. 1. AFFIRMED.
Opinion by Mitchell, P.J.; Buettner, C.J., and
Swinton, J., concur.
115,189 — In the Matter of the Adoption of
M.R.H. and T.R.H.: Charlotte Baranski, Petitioner/Appellee, vs. Amanda Kuczwanski, Respondent/Appellant. Appeal from the District Court
of Oklahoma County, Oklahoma. Honorable
Richard W. Kirby, Judge. Respondent/Appellant
Amanda Kuczwanski (Mother) is the biological
mother of minor children, M.R.H. and T.R.H.
She appeals from their adoption without consent. After reviewing the record, we hold there is
clear and convincing evidence Mother failed to
establish and/or maintain a substantial and
positive relationship with the children for a
period of twelve (12) consecutive months out of
the last fourteen (14) months immediately preceding the filing of the petition for adoption. See
10 O.S.2011 § 7505-4.2(H). AFFIRMED. Opinion
by Buettner, C.J.; Mitchell, P.J., and Swinton, J.,
concur.
(Division No. 4)
Friday, January 20, 2017
114,904 — In the Matter of the Adoption of
M.G.K., a Minor Child. Elizabeth G. Dobbs,
Appellant, v. Mark Clarence Mohr and Krici
Beth Mohr, Appellees. Appeal from the District
Court of Tulsa County, Hon. Kurt Glassco, Trial
Judge. In this adoption proceeding, Appellant
(Mother) appeals from an Order adjudicating
M.G.K. eligible for adoption without her consent. Although Mother received notice of the
hearing on the petition for adoption without
Mother’s consent filed by Appellees (Adoptive
Parents), Mother did not appear and, after an
evidentiary hearing, the default Order was
issued. Although Mother filed a motion to
vacate (after the statutory ten-day period for
that filing), this appeal only challenges, in effect, the procedural fairness of the hearing on
the petition for adoption without her consent.
Mother was given the statutory notice and op-
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Vol. 88— No. 7 — 3/4/2017
portunity to be heard and defend required by
10 O.S. 2011 § 7505-4.1 but she failed to appear
at the hearing on the petition to adopt M.G.K.
without her consent. We, therefore, conclude
Mother’s procedural due process rights were
not violated and affirm the Order. AFFIRMED.
Opinion from Court of Civil Appeals, Division
IV, by Barnes, P.J.; Thornbrugh, V.C.J., and
Rapp, J. (sitting by designation), concur.
the ordinary course of the law. Therefore, we
conclude Wilkins has failed to demonstrate the
Oklahoma County District Court abused its
discretion in declining to compel ODOC to
return to his inmate trust account the $350 filing fee paid to the federal district court. AFFIRMED. Opinion from Court of Civil Appeals,
Division IV, by Barnes, P.J.; Thornbrugh, V.C.J.,
and Wiseman, J., concur.
Tuesday, January 24, 2017
115,217 — Weatherford International, and
New Hampshire Insurance Co., Petitioners, v.
Adam Horn, and the Workers’ Compensation
Court of Existing Claims, Respondents. Proceeding to review an Order of a three-judge
panel of the Workers’ Compensation Court of
Existing Claims, Hon. David P. Reid, Trial Judge.
Petitioners (collectively, Employer) seek review
of the panel’s Order affirming the trial court’s
determinations that Respondent (Claimant) suffered a change in condition for the worse and
that he should be awarded reasonable and necessary medical treatment. Employer asserts the
report of an independent medical examiner
(IME) in this case directly contradicts the panel’s finding that Claimant suffered a change in
condition for the worse. However, the first MRI
scan upon which the IME relies – dated in May
2013 – predates both the July 2013 surgery and
the underlying February 2014 order. The date
of the February 2014 order marks the point at
which Claimant’s “healing period [came] to an
end and his condition or state of health . . .
reached the very optimum that [was] then
medically attainable. The law assumes that a
condition of health, once adjudged to be permanent, is “stationary” until a recurrence is
shown. Emery v. Cent. Okla. Health Care, 2007
OK 28, ¶ 10, 158 P.3d 1052 (quoting Bill Hodges
Truck Co. v. Gillum, 1989 OK 86, ¶ 6, 774 P.2d
1063). Thus, the 2013 pre-surgery MRI, by
itself, fails to reveal the condition of Claimant’s
arm in February 2014 when his “healing period
[came] to an end[.]” As properly noted by the
trial court, the IME’s strategy of relying on a
comparison of the 2015 MRI with the 2013 MRI
resulted in an unconvincing conclusion as to
change of condition from the time of the February 2014 order. If anything, the IME’s report
supports the trial court’s finding that Claimant
suffered a “recurrence of [his] pre-surgery condition[.]” Other objective medical evidence
presented by Claimant also supports the panel’s Order. We conclude the panel’s Order is
neither clearly against the weight of the evidence nor contrary to law. Consequently, we
sustain. Opinion from Court of Civil Appeals,
115,119 — Charles Dale Wilkins, Petitioner/
Appellant, v. Robert Patton, Respondent/Appellee. Appeal from the District Court of Oklahoma County, Hon. Aletia Haynes Timmons,
Trial Judge. Petitioner/Appellant (Wilkins) is
currently incarcerated in the Union City Community Corrections Center in Union City, Oklahoma. Wilkins appeals from the trial court’s
Order denying his application for a writ of
mandamus. We affirm the trial court’s Order
because Wilkins, who seeks the return of a $350
filing fee paid to the United States District
Court for the Eastern District of Oklahoma,
had a plain and adequate remedy in the ordinary course of the law in the form of an appeal
in the federal court from the federal district
court’s ruling denying his motion to proceed in
forma pauperis. Moreover, having chosen not to
pursue such an appeal from the federal district
court’s order, Wilkins does not possess a clear
legal right to compel the Oklahoma Department of Corrections (ODOC) to refund the
$350 filing fee which was paid to the federal
court. In addition, regarding the document
which Wilkins attached to his application for
writ of mandamus in support of his assertion
that an ODOC employee misrepresented to the
federal district court that Wilkins’ inmate trust
account contained an average monthly balance
well in excess of what it actually contained, the
calculation contained in the document is accurate and we disagree with Wilkins that the document contains a clear misrepresentation of the
contents of his inmate trust account. Furthermore, while it is possible the federal district
court’s order denying his in forma pauperis motion may have been based on a misreading of the
ODOC document, Wilkins could have resolved
any such error by appealing from the federal
district court’s order. Wilkins has failed to
show he possesses a clear legal right to compel
ODOC to refund the filing fee — a filing fee
which, pursuant to Wilkins’ own allegations, is
not in the possession of ODOC or any other
state entity or employee — and he has failed to
show he had no plain and adequate remedy in
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417
Division IV, by Barnes, P.J.; Thornbrugh, V.C.J.,
and Wiseman, J., concur.
Friday, February 3, 2017
114,172 — Judy Knight, an individual, Plaintiff/Appellant, vs. Ward and Glass, Stanley
Ward, and John or Jane Does 1-10, individuals
or corporations, Defendants/ Appellees. Appeal from an order of the District Court of
Cleveland County, Hon. Tracy Schumacher,
Trial Judge, denying Plaintiff’s motion to vacate. Plaintiff argues the trial court erred in
denying the motion to vacate the dismissal
order because the “Summary Order” issued by
the trial court granting the dismissal is not a
final order. We conclude that when Plaintiff
filed the motion to vacate pursuant to 12 O.S. §
1031.1, there was no final order dismissing
Plaintiff’s action. Plaintiff’s motion to vacate
the dismissal order did not challenge a final
order or judgment as required by § 1031.1 and
is thus premature. The case is remanded for
further proceedings. APPEAL DISMISSED
AND CASE REMANDED. Opinion from the
Court of Civil Appeals, Division IV, by Wiseman, J.; Thornbrugh, V.C.J., and Barnes, P.J.,
concur.
Wednesday, February 15, 2017
114,804 — Janice Steidley, Plaintiff/Appellant/Counter-Appellee, v. William “Bill” Higgins, Erin O’Quin, Carl Williams, Sally Williams, Edith Singer, Randy Cowling, Bailey
Dabney, Salesha Wilken, Newspaper Holdings,
d/b/a Claremore Daily Progress, and Community Newspaper Holdings, Defendants/Appellees/Counter-Appellants. Appeal from the
District Court of Rogers County, Hon. Russell
Vaclaw, Trial Judge. Plaintiff (Steidley) appeals
from the trial court’s Order finding Defendants
“have successfully challenged [Steidley’s] Petition under” the Oklahoma Citizens Participation Act (the OCPA), 12 O.S. Supp. 2014 §§
1430-1440. The outcome of this appeal is controlled by the Oklahoma Supreme Court’s
recent decision in Anagnost v. Tomecek, 2017 OK
7, _ P.3d _. In Anagnost, the Supreme Court
explained that the focus when determining
whether the OCPA applies is on the date the
particular cause of action accrued. If an action
418
accrued prior to the effective date of the OCPA
– November 1, 2014 – then the OCPA cannot
apply retroactively; among other things, a
plaintiff may neither be benefitted nor disadvantaged by later-enacted legislation. See Anagnost, ¶ 15 (Only “remedial or procedural
statutes which do not create, enlarge, diminish,
or destroy vested rights may operate retrospectively[.]”). It appears that the present cause of
action accrued well before the effective date of
the OCPA. For instance, the grand jury petition
at the heart of this lawsuit was filed in August
2013, and the publication by the newspaper
entities appears to have occurred at that time,
or soon after in 2013. Pursuant to Anagnost,
which stresses the pertinent constitutional protections at issue which “safeguard[] substantive rights which remain unaffected by laterenacted legislation,” id. ¶ 10, the OCPA cannot
apply where the underlying conduct, transaction, or occurrence all transpired, and the cause
of action accrued, prior to the effective date of
the legislation. However, we make no determination regarding the date this cause of action
accrued because this particular issue was not
argued or developed at the hearing below, and
the trial court did not address this particular
issue in its Order. Thus, we reverse the trial
court’s Order, and we remand this case to the
trial court with directions to determine, in the
first instance and in a manner consistent with
Anagnost, whether this cause of action accrued
prior to the effective date of the OCPA. REVERSED AND REMANDED WITH DIRECTIONS. Opinion from Court of Civil Appeals,
Division IV, by Barnes, P.J.; Thornbrugh, V.C.J.,
and Wiseman, J., concur.
ORDERS DENYING REHEARING
(Division No. 4)
Friday, February 10, 2017
115,036 — Traci Ballard, Plaintiff/Appellant,
vs. Oklahoma Historical Society and City of
Guthrie, Defendants/Appellees, and Traci Ballard, Plaintiff/Appellant, vs. Guthrie Territorial Christmas LCHS, Logan County Historical
Society, and Oklahoma Historical Society,
Defendants/Appellees. Appellee’s Petition for
Rehearing is hereby DENIED.
The Oklahoma Bar Journal
Vol. 88— No. 7 — 3/4/2017
ASSISTANT PROFESSOR
Legal Research, Writing & Advocacy Position Advertisement
The University of Oklahoma College of Law invites applications for a
full-time non-tenure-track faculty appointment in our Legal Research,
Writing & Advocacy program. The start date for the position is August
2017. The initial appointment will be for a one-year renewable contract
that can lead, after three years, to renewable longer-term contracts
with security of position consistent with ABA standards.
The successful candidate will teach two sections of 20-24 students
each during the fall and spring semesters of Legal Research, Writing,
and Advocacy. Applicants must demonstrate excellent research and
writing skills, the ability to diagnose legal writing difficulties, and the
ability to mentor students in one-to-one and small group settings. All
legal writing faculty members are expected to coach and travel with
one or more teams in the College of Law’s successful moot-court
program and take on regular committee assignments and other service
obligations. This is a full-time benefits-eligible nine-month position.
Applicants must have a J.D. from an ABA-accredited law school; a
superior academic record; excellent legal research, writing, and oral
advocacy skills; and experience teaching full-time or as an adjunct in a
law school, preferably in legal writing and appellate advocacy, or at least
three years of law-practice experience. Teaching experience is a plus.
Vol. 88— No. 7 — 3/4/2017
The Oklahoma Bar Journal
Please submit electronic applications to:
Professor Gail Mullins at [email protected]
Please submit print applications to:
Professor Gail Mullins
Director of Legal Research, Writing, and Advocacy
University of Oklahoma College of Law
300 Timberdell Road
Norman, OK 73019
Electronic submissions should include the following
in a single PDF file in the order indicated:
(1) a cover letter;
(2) curriculum vitae;
(3) the names and contact information for
three references;
(4) a writing sample; and
(5) (if available) teaching evaluations from
the most current year of teaching.
he University of Oklahoma is an Equal Opportunity, Equal Access, Affirmative Action
Employer. All qualified applicants will receive consideration for employment without
regard to race, color, religion, sex, national origin, disability status, protected veteran
status, or any other characteristic protected by law.
419
CLASSIFIED ADS
SERVICES
SERVICES
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].
INTERESTED IN PURCHASING PRODUCING &
NONPRODUCING Minerals; ORRI; O & G Interests.
Please contact: Patrick Cowan, CPL, CSW Corporation,
P.O. Box 21655, Oklahoma City, OK 73156-1655; 405755-7200; Fax 405-755-5555; email: [email protected].
Appeals and litigation support
Expert research and writing by a veteran generalist
who thrives on variety. Virtually any subject or any
type of project, large or small. NANCY K. ANDERSON, 405-682-9554, [email protected].
Creative. Clear. Concise.
BRIEF WRITING, APPEALS, RESEARCH AND DISCOVERY SUPPORT. Eighteen years experience in civil
litigation. Backed by established firm. Neil D. Van Dalsem, Taylor, Ryan, Minton, Van Dalsem & Williams PC,
918-749-5566, [email protected].
HANDWRITING IDENTIFICATION
POLYGRAPH EXAMINATION
Board Certified
Diplomate — ABFE
Life Fellow — ACFEI
Arthur D. Linville
Court Qualified
Former OSBI Agent
FBI National Academy
405-736-1925
MEDICAL MALPRACTICE CASE REVIEW: Board
certified pediatrician and member of the Oklahoma
Bar Association. Available to review any issues involving neonates, children and adolescents. William
P. Simmons, M.D., J.D. 850-877-1162 wsimmons@
northfloridapeds.com.
Round-Trip Long-Distance Rides
Reliable driver with a business-friendly vehicle.
Travel all over in Oklahoma and other cities,
like Dallas and Wichita. First Five Round-Trips
to Dallas - $250. Taylor Jackson, 405-570-1200,
andbackrides.com, [email protected].
CONTRACT LEGAL SERVICES – Lawyer with
highest rating and with 30+ years’ experience on both
sides of the table is available for strategic planning,
legal research and writing in all state and federal trial
and appellate courts and administrative agencies.
Admitted and practiced before the United States
Supreme Court. Janice M. Dansby, 405-833-2813,
[email protected].
420
Want To Purchase Minerals AND OTHER OIL/
GAS INTERESTS. Send details to: P.O. Box 13557, Denver, CO 80201.
OKC ATTORNEY HAS CLIENT INTERESTED IN PURCHASING large or small producing or nonproducing
mineral interests. For information, contact Tim Dowd,
211 N. Robinson, Suite 1300, OKC, OK 73102, 405-2323722, 405-232-3746- fax, [email protected].
OFFICE SPACE
NW OKC OFFICE SPACE AVAILABLE ON N. CLASSEN BLVD. Ideal location for sole practitioner. Two offices available, one with secretarial area. Furnished reception area, conference room and kitchenette. Contact
Stacy at 405-528-0047.
MIDTOWN TULSA LAW OFFICE – 1861 E. 15th. Utica
Square district. Receptionist, copier, phone, fax, wireless internet, alarm system, conference room, signage,
kitchen. Ample parking. Virtual office leases also available. Contact Terrie at 918-747-4600.
OFFICE SPACE FOR RENT WITH OTHER ATTORNEYS: NW Classen, OKC. Telephone, library, waiting
area, receptionist, telephone answering services, desk,
chair and file cabinet included in rent. One for $390 and
one for $450 per month. Free parking. No lease required. Gene or Charles 405-525-6671.
POSITIONS AVAILABLE
THE OKLAHOMA BAR ASSOCIATION HEROES program is looking for several volunteer attorneys. The
need for FAMILY LAW ATTORNEYS is critical, but attorneys from all practice areas are needed. All ages, all
counties. Gain invaluable experience, or mentor a
young attorney, while helping someone in need. For
more information or to sign up, contact Gisele Perryman, 405-416-7086 or [email protected].
DOWNTOWN OKLAHOMA LAW FIRM WITH FIVE
ATTORNEYS seeking of counsel attorney and/or office
sharing arrangement. Attorney(s) must have some existing clients to join office and share expenses. Some
referrals could be available. Telephone, internet, receptionist, conference room, access to kitchen, access to
printer/copier/fax/scanner on system network. If interested, please contact us at “Box A,” Oklahoma Bar
Association, P.O. Box 53036, Oklahoma City, OK 73152.
COFFEY, SENGER & McDANIEL seeks a litigation attorney with 5 to 7 years of experience. Trucking litigation experience is preferred. Please submit resume and
writing sample to [email protected].
The Oklahoma Bar Journal
Vol. 88— No. 7 — 3/4/2017
POSITIONS AVAILABLE
POSITIONS AVAILABLE
HARRISON & MECKLENBURG INC., A WELLESTABLISHED AV RATED FIRM, IS LOOKING FOR
AN ASSOCIATE with a strong academic background
and preferably 2-5 years’ experience in real estate and
title examinations for its Kingfisher office. Please visit
www.hmlawoffice.com for additional information
about the firm. For more information or to submit
a resume and law school transcript, please email
[email protected].
DAVIS LAW, AN OUTSIDE GENERAL COUNSEL
AND BUSINESS LITIGATION FIRM IN ENID, is seeking sharp, motivated attorneys with at least three
years of experience in areas of the law relevant to our
practice. Members of our growing firm enjoy a team
atmosphere and an energetic environment. Salary
competitive and relative to experience and qualifications. Reasonable billing requirements and commission
structure available for associates that take on managerial responsibilities. Submit cover letter and resume to
[email protected].
ATTORNEY NEEDED FOR AV-RATED TULSA FIRM
WITH DIVERSE CIVIL LITIGATION PRACTICE.
Looking for associates to help prepare cases for trial in a
fast-paced office that rewards a strong work ethic, selfmotivation and critical thinking. Attorneys 0 to 5 years
encouraged to apply. Competitive salary commensurate
with experience, health/life insurance, 401k, vacation,
sick leave, etc. Please send a resume and writing sample
(10 pg. max) to “Box PP,” Oklahoma Bar Association,
P.O. Box 53036, Oklahoma City, OK 73152.
OKLAHOMA COUNTY – ASSISTANT DISTRICT ATTORNEY: Are you an experienced attorney who finds
your current practice unfulfilling? Do you want to join
a team of quality people who dedicate themselves to
serving others every day? Do you want to fight for
those who can’t fight for themselves? Does injustice anger you? Are you willing to serve in a highly demanding and highly stressful environment with disproportionate compensation? If you answered, “Yes” to all of
the questions above, we have the perfect opportunity
for you! A few good men and women are needed to
step up and dedicate their professional lives to serving
the citizens of Oklahoma County and the state of Oklahoma as an assistant district attorney. Do you have
what it takes? Send your resume to: District Attorney
David Prater, 320 Robert S. Kerr Avenue, Suite 505,
Oklahoma City, Oklahoma 73102.
MCAFEE & TAFT IS SEEKING AN ASSOCIATE ATTORNEY WITH 1-3 YEARS’ EXPERIENCE to join its
growing Employee Benefits Practice Group in its Oklahoma City office. Ideal candidates will have experience
in tax, transactional work and/or employee benefits.
Top academic performance along with excellent writing, analytical and interpersonal skills are required.
Please direct all inquiries to Brandon Long at brandon.
[email protected].
DOWNTOWN OKC LAW FIRM SEEKS OIL AND GAS
TITLE ATTORNEY. Two to five years of experience preferred. Pay is commensurate with experience. Excellent
benefits package. Please send cover letter and resume
to “Box FF,” Oklahoma Bar Association, P.O. Box 53036,
Oklahoma City, OK 73152.
THE TULSA FIRM RICHARDS & CONNOR IS SEEKING AN ATTORNEY with a minimum of 3 years’ experience in civil litigation. Please submit a resume, cover
letter and writing sample to Administrator, 525 S. Main
St., 12th Fl., Tulsa, Oklahoma 74103, or via email to
[email protected].
Vol. 88— No. 7 — 3/4/2017
DOWNTOWN OKLAHOMA CITY PERSONAL INJURY FIRM SEEKS AN ASSOCIATE with minimum 3 to 5
years’ experience in general civil litigation. Individual
must be able to draft pleadings, prepare discovery responses and handle scheduling. Trial and deposition
experience preferred. Please send your resume with
salary requirements to [email protected].
NW OKC LAW FIRM SEEKING OIL AND GAS TITLE
ATTORNEY. One to five years’ experience rendering
Oklahoma title opinions preferred. Competitive salary
and benefits package. Please send resume and transcript to [email protected].
DOWNTOWN OKC LAW FIRM SEEKS ASSOCIATE
ATTORNEY. Primary duties include legal research and
writing for civil litigation. One to three years of experience preferred. Pay is commensurate with experience.
Excellent benefits package. Please send cover letter, resume and writing sample to “Box EE,” Oklahoma Bar
Association, P.O. Box 53036, Oklahoma City, OK 73152.
OKLAHOMA DISABILITY LAW CENTER (ODLC), a
civil rights organization, seeks director of legal services. This is a unique opportunity to build a strong legal
program in a medium sized firm. Candidates must be
member in good standing of Oklahoma Bar Association or willing to take next available bar exam and must
have five to 10 years’ experience in the practice of law,
with demonstrated effectiveness as a litigator. A commitment to use the legal system to enforce the rights of
people with disabilities is essential. The successful candidate may work out of either Oklahoma City or Tulsa. EEOC employer. Interested persons should submit a letter of interest and resume, by March 10, 2017,
to [email protected].
NW OKC LAW FIRM SEEKING OIL AND GAS TITLE
ATTORNEY. One to five years’ experience rendering
Oklahoma Title Opinions. Please email your resume to
[email protected].
PHILLIPS MURRAH PC is looking for a registered patent attorney with at least 5 years of practice and an established client base to help expand our IP Practice. We
have a very competitive salary and benefit package to
offer. If you want to work in a progressive and fast
growing law firm with a quality work environment,
please submit your resume in confidence to resume@
phillipsmurrah.com.
The Oklahoma Bar Journal
421
POSITIONS AVAILABLE
POSITIONS AVAILABLE
THIS POSITION WILL REPORT TO THE SENIOR EXECUTIVE OFFICER OF THE LEGAL AND COMPLIANCE DIVISION. The executive director is responsible
for the management of the CNO In-House Legal Department in its entirety. This position will coordinate
with the senior executive officer and outside counsel on
all legal matters, will manage internal case management and the delegation of assignments to in-house associate counsel and personnel. Primary tasks include
rendering legal advice and services to all branches, entities, departments and senior executive officers of the
Choctaw Nation with respect to legislation, regulatory
practices, gaming operations, alcohol licensing, commercial ventures or other matters falling within the
purview of all branches of the Choctaw Nation of Oklahoma; providing legal representation to the nation in all
requested and/or required legal and liability areas; overall supervision and management of the Legal Department of CNOK; all final personnel decision-making for
the Legal Department of CNOK; case management and
assignment of all in-house matters and projects delegated to the specialized assigned attorney and/or legal
team subordinates; the submission and final approval of
all budget proposals to the legislative branch on behalf
of the In-house Legal Department, upon final approval
of the senior executive officer of legal and compliance;
final approvals for all Legal Department’s account receivables and legal vendor billings; working with the
Department of Risk Management on the development
and strategic planning from the legal and liability perspective to reduce risk; will be the legal supervisor/advisor for the preparation, negotiation, review and advisory work pertaining to contracts, agreements, and other
legal instruments of commercial ventures on behalf of
the CNOK; and perform other duties as may be assigned. Applicants must have a J.D. and be admitted to
the bar to practice in Oklahoma; be familiar with local,
state and federal laws and regulations, legislative processes and regulatory agencies; have a sound grasp of
the legal issues and requirements of the tribe’s commercial ventures, such as licensing, acquisition and
divestiture; have a broad understanding of tribal law,
sovereignty and tribal court proceedings; excellent
communication skills; effective presence to represent
the tribe in all legal matters dealing effectively with attorneys, elected officials, regulators and other executives; and ten or more years of experience in law. Please
apply at careers.choctawnation.com.
GABLEGOTWALS IS SEEKING AN ATTORNEY IN
OUR TULSA OFFICE with 2-5 years of prior legal experience to work in its growing business transactions
practice. The successful candidate will support the
firm’s energy, banking and business clients and will assist with mergers and acquisitions, banking and corporate finance, securities, commercial and contract matters. Candidates should have an established work ethic,
a focus on attention-to-detail and a desire to develop
and support the firm’s client development and marketing efforts. In addition, excellent academic credentials
and written and oral communications skills are required. Compensation will be commensurate with experience and consistent with the most competitive
compensation in the Oklahoma legal market. Interested candidates should submit a resume and cover letter
to [email protected].
422
ASSISTANT ATTORNEY GENERAL - The Office of the
Oklahoma Attorney General is seeking an assistant attorney general to work under the supervision of the
solicitor general. This position is a unique position
within the office and involves the supervision of various boards, agencies and commissions through review
of individualized actions taken by those entities. The
successful candidate will have outstanding legal judgment and be able to effectively and professionally research, prepare, analyze and understand complex information and legal issues. Applicants must be a
licensed attorney in the state of Oklahoma. Some travel
will be required. Salary is commensurate with experience. EOE. A writing sample must accompany resume
to be considered. Send resume and a writing sample to
[email protected].
FOR SALE
CLOSING SOLO PRACTICE MARCH 31ST AFTER 35
YEARS. Substantial law library, professional quality
furnishings (Sligh/Ethan Allen) and more. Call 918664-7780 and leave name, email address and telephone
number to receive list of particulars and arrange for
viewing.
ALL NEW. 1ST EDITION, 2016-17. SENTENCING IN
OKLAHOMA BY BRYAN DUPLER. The practical guide
for judges and attorneys. $25+shipping. Email orders
to [email protected].
The Oklahoma Bar Journal
Vol. 88— No. 7 — 3/4/2017
FEATURED LIVE WEBCAST
1/0
Do We Really Have
Direct Democracy
in Oklahoma
MARCH 8, Noon - 1 p.m.
LOCATION: Your choice - any place with a computer!
CLE CREDIT: This course has been approved by the Oklahoma Bar
Association Mandatory Continuing Legal Education Commission for
1 hour of mandatory CLE Credit, including 0 hours of ethics.
Questions? Call (405) 416-7029.
For details and to register go to: www.okbar.org/members/CLE
Vol. 88— No. 7 — 3/4/2017
The Oklahoma Bar Journal
423
HOPE IS NOT A PLAN
JOIN US for a screening and
discussion of the PBS FrontLine film
Being Mortal. Based on the
best-selling book by Atul Gawande,
MD, this documentary explores the
hopes of patients and families facing
terminal illness and their
relationships with those who treat
them.
See the film and be a part of a
national conversation that brings
professionals and community
members together around the shared
responsibility of discussing what
matters most to patients and families
facing difficult decisions and what
you as a lawyer can do to help your
clients stay ahead of a medical crisis.
PANEL DISCUSSION:
$150 for early-bird registrations with payment received by March 3rd; $175 for registrations with
payment received March 6th – 9th. Walk-ins $200. Registration includes continental breakfast
and lunch. To receive a $10 discount for the in-person program, register online at http://www.okbar.org/members/CLE. Registration for the live webcast is $200. Seniors may register for $50 on
in-person programs and $75 for webcasts, and members licensed 2 years or less may register
for $75 for in-person programs and $100 for webcasts. Same late fees apply.
- Dr. Waddah N. Nassar, MD
- Terri Kiefner, MSW, LCSW,
Good Shepherd Hospice
- Jan New, Advocate
- Sharon Nash, Executive Director
of Good Shepherd Hospice
- Donna Jackson, Donna J. Jackson
& Associates, Oklahoma City
- Lee Holmes, Holmes, Holmes, &
Neisent, PLLC, Oklahoma City
- David Hartwell, David Hartwell,
Attorney at Law, Oklahoma City
For details and to register go to: www.okbar.org/members/CLE