Volume 85 u No. 12 u April 19, 2014
E:
IN THIS ISSU
LAHOMA
K
O
E
H
T
O
T
S
AMENDMENT Y INSTRUCTIONS
UNIFORM JUR
plus:
CHANGES
MCLE RULES WYERS
LA
FOR SENIOR
842
The Oklahoma Bar Journal
Vol. 85 — No. 12 — 4/19/2014
OFFICERS & BOARD OF GOVERNORS
Renée DeMoss, President, Tulsa
David A. Poarch Jr., President-Elect, Norman
Susan S. Shields, Vice-President, Oklahoma City
James T. Stuart, Immediate Past President, Shawnee
Deirdre O’Neil Dexter, Sand Springs
Robert D. Gifford II, Oklahoma City
Kimberly Hays, Tulsa
Douglas L. Jackson, Enid
John W. Kinslow, Lawton
Rickey J. Knighton, Norman
James R. Marshall, Shawnee
Nancy S. Parrott, Oklahoma City
Kevin T. Sain, Idabel
Bret A. Smith, Muskogee
Richard D. Stevens, Norman
Linda S. Thomas, Bartlesville
Kaleb Hennigh, Enid
Chairperson, OBA/Young Lawyers Division
BAR Center Staff
John Morris Williams, Executive Director;
Gina L. Hendryx, General Counsel; Jim Calloway,
Director of Management Assistance Program;
Craig D. Combs, Director of Administration;
Susan Damron Krug, Director of Educational
Programs; Beverly Petry Lewis, Administrator
MCLE Commission; Carol A. Manning, Director
of Communications; Travis Pickens, Ethics Counsel;
Robbin Watson, Director of Information Technology;
Jane McConnell, Coordinator Law-related Education;
Loraine Dillinder Farabow, Tommy Humphries,
Debbie Maddox, Katherine Ogden, Steve Sullins,
Assistant General Counsels; Tommy Butler, Tanner
Condley, Sharon Orth, William Thames and
Krystal Willis, Investigators
Manni Arzola, Jarrod Houston Beckstrom,
Debbie Brink, Emily Buchanan, Susan Carey,
Nickie Day, Dieadra Florence, Johnny Marie
Floyd, Matt Gayle, Brandon Haynie, Suzi
Hendrix, Misty Hill, Debra Jenkins, Durrel
Lattimore, Heidi McComb, Renee Montgomery,
Larry Quinn, Lori Rasmussen, Wanda F. Reece,
Tracy Sanders, Mark Schneidewent, Jan
Thompson, Laura Willis & Roberta Yarbrough
EDITORIAL BOARD
Editor in Chief, John Morris Williams; News &
Layout Editor, Carol A. Manning; Editor,
Melissa DeLacerda, Stillwater; Associate Editors:
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Tulsa; Erin Means, Moore; Shannon Lee Prescott,
Okmulgee; Mark Ramsey, Claremore; Judge
Megan Simpson, Buffalo; Leslie Taylor, Ada;
Judge Allen J. Welch, Oklahoma City;
January Windrix, Poteau
events Calendar
APRIL 2014
22
New Admittee Swearing-In Ceremony; Supreme Court Courtroom;
Contact: Board of Bar Examiners 405-416-7075
OBA Communications Committee meeting; 12 p.m.; Oklahoma Bar
Center, Oklahoma City with teleconference; Contact Dick Pryor 405-740-2944
23
OBA Work/Life Balance Committee; 12 p.m.; Oklahoma Bar Center,
Oklahoma City; Contact Sarah Schumacher 405-752-5565
OBA Clients’ Security Fund meeting; 2 p.m.; Oklahoma Bar Center,
Oklahoma City with OSU Tulsa, Tulsa; Contact Micheal Salem 405-366-1234
24
OBA Leadership Academy class; 2 p.m.; Oklahoma Bar Center,
Oklahoma City; Contact Heidi McComb 405-416-7027
25
OBA Board of Governors meeting; 3 p.m.; Idabel Chamber of
Commerce, 7 SW Texas St., Idabel; Contact John Morris Williams
405-416-7000
Lawyers Helping Lawyers training; 10 a.m.; Oklahoma Bar Association,
Oklahoma City with teleconference; Contact Hugh Hood 918-856-5373
Lawyers Helping Lawyers Assistance Program Foundation and
Committee meeting; 12 p.m; Oklahoma Bar Association, Oklahoma City
with teleconference; Contact Hugh Hood 918-856-5373
OBA Juvenile Law Section meeting; 4 p.m.; Oklahoma Bar Center,
Oklahoma City with teleconference; Contact Tsinena Thompson 405-232-4453
29
OBA Women in Law Committee meeting; 12 p.m.; Oklahoma Bar
Center, Oklahoma City with University of Tulsa College of Law, Tulsa; Contact
Allison Thompson 918-295-3604
MAY 2014
1
OBA Ask A Lawyer Statewide Free Legal Advice; 9 a.m. – 9 p.m.;
OETA Studio, 7403 N. Kelley Ave., Oklahoma City; OETA Studio, 535 N.
Greenwood, Tulsa; Contacts Richard Vreeland, 405-360-6631;
Jennifer Prilliman, 405-208-5174
OBA Lawyers Helping Lawyers discussion group meeting; 6 p.m.;
Office of Tom Cummings, 701 NW 13th St., Oklahoma City; RSVP to Kim
Reber [email protected]
For more events go to www.okbar.org/calendar
The Oklahoma Bar Association’s official website:
www.okbar.org
NOTICE of change of address (which must be
in writing and signed by the OBA member),
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The design of the scales and the “Oklahoma Bar Association” encircling the
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The Oklahoma Bar Journal (ISSN 0030-1655) is published three times
a month in january, February, March, April, May, August, September, October, November and December and bimonthly in June and
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Journal Board of Editors.
Vol. 85 — No. 12 — 4/19/2014
The Oklahoma Bar Journal
843
844
The Oklahoma Bar Journal
Vol. 85 — No. 12 — 4/19/2014
Oklahoma Bar Association
table of
contents
April 19, 2014 • Vol. 85 • No. 12
page
843
Events Calendar
846
Index to Court Opinions
848Supreme Court Opinions
848 Oklahoma Uniform Jury Instruction Changes
911 MCLE Changes for Senior Lawyers
918Court of Criminal Appeals Opinions
921Court of Civil Appeals Opinions
944
Disposition of Cases Other Than by Publication
Vol. 85 — No. 12 — 4/19/2014
The Oklahoma Bar Journal
845
Index to Opinions of Supreme Court
2014 OK 17 IN RE: AMENDMENTS TO THE OKLAHOMA UNIFORM JURY INSTRUCTIONS - CIVIL (SECOND). S.C.A.D. No. 2014-17.......................................................................... 8 4 8
2014 OK 18 IN RE: AMENDMENT TO THE OKLAHOMA UNIFORM DISTRICT COURT
RULES, 12 O.S. Ch. 2, App. S.C.A.D. No. 2014-18.......................................................................... 8 7 7
2014 OK 19 IN RE: AMENDMENT TO THE OKLAHOMA SUPREME COURT RULES, 12
O.S. Ch. 15, App. 1 S.C.A.D. No. 2014-19......................................................................................... 8 7 7
2014 OK 20 STATE OF OKLAHOMA ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. WILLIAM G. BERNHARDT, Respondent. No. SCBD 6001..................................... 8 7 8
2014 OK 22 WALTER HALL, Plaintiff/Appellant, v. THE GEO GROUP, INC, Defendant/
Appellee. No. 112,222.......................................................................................................................... 8 7 8
2014 OK 23 IN RE: INITIATIVE PETITION NO. 397, STATE QUESTION NO. 767, TAKE
SHELTER OKLAHOMA and KRISTI CONATZER, Petitioners, v. STATE OF OKLAHOMA, ex rel., ATTORNEY GENERAL, E. Scott PRUITT Respondent. No. 112,264.............. 8 8 3
2014 OK 24 STACEY L. HEMPHILL, Petitioner, v. HONORABLE PRESTON HARBUCK,
Associate District Judge and/or ATOKA COUNTY DISTRICT COURT, Respondent.
No. 111,984............................................................................................................................................ 9 0 1
2014 OK 25 STATE OF OKLAHOMA ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. MARK ANDREW ZANNOTTI, Respondent. SCBD No. 6019................................ 9 0 4
2014 OK 26 IN RE: Rules for Mandatory Continuing Legal Education SCBD No. 3319................. 9 11
Index to Opinions of Court of Criminal Appeals
2014 OK CR 2 MAXIMINO MANUEL SOTO, Appellant, vs. THE STATE OF OKLAHOMA, Appellee. No. M-2012-1095........................................................................................................ 9 1 8
Index to Opinions of Court of Civil Appeals
2014 OK CIV APP 25 IN RE THE MARRIAGE OF AMANDA MARIA VARBEL, NOW
PATTISON, AND BRICE DUANE VARBEL: AMANDA MARIA VARBEL, NOW
PATTISON, Petitioner/Appellee, vs. BRICE DUANE VARBEL, Respondent/Appellant. Case No. 110,078.......................................................................................................................... 9 2 1
2014 OK CIV APP 26 R & R ENGINEERING CO., INC., Plaintiff/Appellant, vs. BOARD
OF REVIEW OESC, OKLAHOMA EMPLOYMENT SECURITY COMMISSION,
Defendant/Appellee, and DAVID A. BOOTH, Defendant. Case No. 110,355........................... 9 2 5
846
The Oklahoma Bar Journal
Vol. 85 — No. 12 — 4/19/2014
2014 OK CIV APP 27 WILLIE RAY POINTS, Petitioner/Appellant, vs. THE STATE OF
OKLAHOMA, Respondent/Appellee. Case No. 111,326.............................................................. 9 2 8
2014 OK CIV APP 28 MARTHA ALICE OVERSTREET KAIL, Plaintiff/Appellant, vs.
KATHLEEN DUNNAM KNUDESON, Individually and KATHLEEN KNUDESON,
ANNE TERRY, KIM G. KNUDESON, TRUSTEES OF THE KATHLEEN KNUDESON
TRUST DATED NOVEMBER 2, 2009, Defendants/Third Party Plaintiffs/Appellees,
and Maudress Elaine Overstreet, Mary J. Bell, Thomas G. Overstreet, Elizabeth Overstreet, Charles A. Overstreet, John Thomas Overstreet, Russell Overstreet, Mary Russell, Dora Littlefield, Minnie Rabon, Lela Fort, Maggie Mae Overstreet, Dayton Overstreet, Geneva Overstreet, Sengal Overstreet, Victor Overstreet and Ruby Belle Over
street, Third Party Defendants. Case No. 110,284........................................................................... 9 2 9
2014 OK CIV APP 29 In the Matter of the Estate of Carlton E. Horner, Sr., Deceased: CARLTON E. HORNER, JR., Appellant, vs. CARLA STANKICH, PERSONAL REPRESENTATIVE OF THE ESTATE OF CARLTON E. HORNER, SR., DECEASED, Appellee.
Case No. 110,794................................................................................................................................... 9 3 2
2014 OK CIV APP 30 TERESA J. BARNARD, Plaintiff/Appellant, vs. EDDIE EUGENE
SUTTON, Defendant/Appellee, and Oklahoma State University, Justin R. Hart,
Thomas W. Allen, James Battles, Jr., Joe Juller, Robet A. Distefano, and James S. Distefano, Defendants. Case No. 110,841............................................................................................. 9 3 7
2014 OK CIV APP 31 RANDY PAUL, Plaintiff/Appellant, vs. RENEE WILLIAMSON,
Defendant, TONY LOPEZ, Intervenor/Appellee. Case No. 111,787........................................... 9 3 9
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Vol. 85 — No. 12 — 4/19/2014
The Oklahoma Bar Journal
847
Supreme Court Opinions
Manner and Form of Opinions in the Appellate Courts;
See Rule 1.200, Rules — Okla. Sup. Ct. R., 12 O.S. Supp. 1996 (1997 T. 12 Special Supplement)
2014 OK 17
IN RE: AMENDMENTS TO THE
OKLAHOMA UNIFORM JURY
INSTRUCTIONS - CIVIL (SECOND).
S.C.A.D. No. 2014-17. March 24, 2014
ORDER ADOPTING AMENDMENTS TO
OKLAHOMA UNIFORM JURY
INSTRUCTIONS - CIVIL (SECOND)
¶1 The Court has reviewed the recommendations of the Oklahoma Supreme Court Committee for Uniform Civil Jury Instructions that
proposed Instructions should be adopted. The
Court finds that the revisions should be adopted as modified by the Court.
¶2 It is therefore ordered, adjudged and
decreed that the revisions to the Instructions
shall be available for access via internet from
the Court website at www.oscn.net and provided to West Publishing Company for publication. The Administrative Office of the Courts
is requested to 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 these
revisions effective thirty (30) days from the
date of this Order.
¶3 It is therefore ordered, adjudged and
decreed that the amendments to the existing
Oklahoma Uniform Jury Instructions - Civil
(Second Edition), and the adoption of new
Instructions, as set out in the following designated Instructions and attached to this Order,
are hereby adopted: Instruction Nos. 1.2A, 1.9,
1.12, 1.13, 4.17, 5.9, 9.24, 9.26, 9.33, 9.34, 9.36,
18.1, 18.2, 21.1, 21.2, 21.3, 21.4, 21.5, 21.6, 21.7,
21.8, 21.9, 21.10, 21.11, 21.12, 21.21, 21.22, 21.23,
22.7, 28.1, 28.2, 28.3, 28.4, 28.5, 28.6, 28.7, 28.8,
28.9, 29.1, 29.2, 29.3, 29.4 & 29.5; and the Preface to Comparative Negligence Instructions
shall be stricken.
¶4 The Court also accepts and authorizes the
updated Committee’s comments, as modified
by the Court, to be published, together with the
above-referenced revisions and each amended
848
page in the revisions to be noted at the bottom
thereof as follows (2014 Supp.).
¶ 5 As it did so previously, the Court today
declines to relinquish its constitutional or statutory authority to review the legal correctness
of these authorized Instructions when it is
called upon to afford corrective relief in any
adjudicative context.
¶ 6 These amended Instructions shall be
effective thirty (30) days from the date this
Order is filed with the Clerk of this Court.
DONE BY ORDER OF THE SUPREME
COURT IN CONFERENCE THE 13th DAY
OF MARCH, 2014.
/s/ Tom Colbert
CHIEF JUSTICE
Colbert, C.J., Reif, V.C.J., Kauger, Watt, Edmondson, Combs and Gurich, JJ., - concur,
Winchester, J. - concurs in result,
Taylor, J. - concurs in part and dissents in part.
I would adopt all of the recommendations of
the OUJI-CIV committee.
Instruction No. 1.2A. (NEW)
INTRODUCTORY INSTRUCTIONS —
JUROR QUESTIONNAIRES
IN THE DISTRICT COURT OF _____________
COUNTY, STATE OF OKLAHOMA
[Name],
Plaintiff,
v.
[Name],
Defendant.
)
)
) Case No.
)
)
)
JUROR QUESTIONNAIRE
Each prospective juror must complete and
sign this standard juror questionnaire and any
supplemental questionnaire provided by the
court. This questionnaire and any supplemental questionnaire shall be confidential and will
be used by the judge and the attorneys to aid
them in selecting the jury in this case. If you do
The Oklahoma Bar Journal
Vol. 85 — No. 12 — 4/19/2014
not understand a question, please indicate. If
you do not have enough room to give adequate
explanation to your answer, please use the
space in question 24 for additional information. If there is any question that you would
rather discuss with the judge and attorneys
privately outside the presence of other jurors,
please mark the question with an asterisk (*).
service, and specify whether service was
reserve or active duty: _____________________
1. Name: ________________________________
_________________________________________
(Last)
(First)
(Middle initial)
2. Sex: ( ) male ( ) female
3. Marital status: ( ) married ( ) never married
( ) separated ( ) divorced ( ) widowed
4. Age: _____________
5. Place of birth: _________________________
6. Length of residency in Oklahoma (years): __
_________________________________________
_________________________________________
15. List the organizations that you belong to or
participate in, and the offices, if any, that you
hold in these organizations: ________________
_________________________________________
16. If you are married, state spouse’s full name,
occupation and employer: _________________
_________________________________________
_________________________________________
_________________________________________
7. What county do you live in? _____________
17. If you have any children or step children,
please provide the following information:
8. List other places (city and state) you have
lived: ___________________________
Child # 1: sex ___ age ____ occupation _______
______________________________
9. What is your occupation? ________________
Child # 2: sex ___ age ____ occupation _______
______________________________
(If retired or unemployed, write retired or unemployed and
give your previous occupation.)
10. If you are currently employed outside the
home, please provide:
Name of employer: ________________________
Job title: _________________________________
Child # 3: sex ___ age ____ occupation _______
______________________________
Child # 4: sex ___ age ____ occupation _______
______________________________
Length of time worked there: _______________
18. Have you ever served as a juror? ( ) yes
( ) no
11. List other types of jobs you have held as an
adult: ___________________________________
If yes, please provide the following information:
_________________________________________
Year Court/location Type of case were
you the
fore
person?
____ ______________ __________( )yes ( ) no
_________________________________________
12. Educational background: _______________
_________________________________________
_________________________________________
13. If you attended college or vocational school,
specify your major areas of study and any
degrees or certificates you earned and whether
you have taken any course in law: __________
_________________________________________
_________________________________________
_________________________________________
14. If you have had military experience, state
your highest rank, branch of service, length of
Vol. 85 — No. 12 — 4/19/2014
____ ______________ __________( ) yes ( ) no
____ ______________ __________( ) yes ( ) no
19. Have you ever appeared as a witness in any
court proceeding, either civil criminal or military? ( ) yes ( ) no
If yes, when and in what court? ____________
_________________________________________
20. Have you or any member of your immediate
family been a party to any kind of lawsuit or
court proceeding? Include all of the following:
Criminal
( ) yes ( ) no
The Oklahoma Bar Journal
849
Bankruptcy
Civil
Workers’ compensation
Divorce
Other
( ) yes ( ) no
( ) yes ( ) no
( ) yes ( ) no
( ) yes ( ) no
( ) yes ( ) no
If yes to any, state when and in what court as to
each ____________________________________
_________________________________________
_________________________________________
21. Have you, any family member, or any close
friend ever worked for any attorney, a law
office? ( ) yes ( ) no
If yes, state each person’s name and relationship to you:
_________________________________________
_________________________________________
Position held: ____________________________
_________________________________________
Name of attorney or law office: _____________
_________________________________________
Dates of employment: _____________________
_________________________________________
22. Have you, any family member, or any close
friend ever worked in law enforcement? ( ) yes
( ) no
If the answer is yes, please identify the name of
the person(s) so employed, the particular agency or department(s), the position held for such
agency or department(s), and the years of
employment:
_________________________________________
_________________________________________
23. Are you presently taking medicine or have
any hearing or other health issue which may
affect your ability to serve as a juror? ( ) yes
( ) no
If yes, please explain: ______________________
_________________________________________
_________________________________________
24. Is there any reason you could not serve as a
juror? ( ) yes ( ) no
If yes, please explain: ______________________
_________________________________________
850
_________________________________________
25. Use this space for any additional comments:
_________________________________________
_________________________________________
I affirm that the forgoing is true and correct to
the best of my knowledge and belief.
_________________________________________
_________________________________________
(Date and Place)
(Signature)
Notes on Use
In its discretion, the trial court may direct the
use of this juror questionnaire as well as supplemental questionnaires as a supplement to,
rather than a substitute for voir dire. If used,
juror questionnaires should be distributed to
the members of the jury pool before the commencement of voir dire, and adequate time for
the court and attorneys to review the jurors’
responses should be allowed before voir dire
begins.
Juror questionnaires should be kept confidential, and copies of them should be made
available only for use during voir dire to the
attorneys for the plaintiff(s) and defendant(s),
and to the trial court, except as needed for
appellate review. Juror questionnaires should
not be made a part of the public record. After
the jury has been empaneled, the original questionnaires of all empaneled or questioned jurors
should be retained pursuant to Okla. Sup. Ct. R.
1.28(l) until all appeals have been concluded. All
copies of juror questionnaires should be
destroyed at the conclusion of the voir dire, and
the originals of all questionnaires for jurors who
were not questioned during voir dire should be
destroyed at the conclusion of the jurors’ service,
unless the court orders otherwise for good cause
shown. See Okla. Dist. Ct. R. 32.
Comments
This form is based on the juror questionnaire
form in OUJI-CR 1-10, and it is provided to
offer guidance to the trial courts in the use of
juror questionnaires. A number of benefits
from the use of juror questionnaires have been
identified. Juror questionnaires may shorten
the time required for voir dire; however, this
benefit will not be realized unless attorneys
refrain from rehashing the information from
the questionnaires during voir dire. Another
benefit is that juror questionnaires may enable
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Vol. 85 — No. 12 — 4/19/2014
the court and counsel to weed out jurors who
could not serve in a case before voir dire
begins, and thereby accelerate the process of
sending these prospective jurors to a different
case. Juror questionnaires may also highlight
particular areas (such as prior employment
with law enforcement or employment with an
attorney or law office) for more focused inquiry
during voir dire. The use of juror questionnaires provides jurors more time to think about
their answers and provide more complete
responses than voir dire. In addition, since
jurors cannot hear the responses of other jurors
when they are filling out questionnaires on
their own, juror questionnaires can elicit the
jurors’ own opinions without the influence of
the responses by other jurors. Jurors may also
be more likely to reveal socially unacceptable
attitudes, such as racial prejudice or sexism, in
juror questionnaires. Similarly, jurors may be
more apt to disclose private or embarrassing
information (such as a prior criminal record) in
a juror questionnaire than in open court. See
Gregory P. Joseph, American Bar Association
Principles for Juries & Jury Trials, SL044 ALIABA 653, 730 (2005); Lin S. Lilley, Let Jurors
Speak the Truth, In Writing, 41 TRIAL 64 (July,
2005); Valerie Hans & Alyana Jehle, Avoid Bald
Men and People with Green Socks? Other Ways to
Improve the Voir Dire Process, 78 CHI-KENT L.
REV. 1179, 1198 (2003).
The American Bar Association has endorsed
the use of juror questionnaires. In February,
2005, the ABA House of Delegates approved 19
Principles for Juries and Jury Trials. Principle 11
states: “Courts should ensure that the process
used to empanel jurors effectively serves the
goal of assembling a fair and impartial jury.”
Paragraph A under Principle 11 provides:
Before voir dire begins, the court and
parties, through the use of appropriate
questionnaires, should be provided with
data pertinent to the eligibility of jurors
and to matters ordinarily raised in voir
dire, including such background information as is provided by prospective jurors in
their responses to the questions appended
to the notification and summons considered in Standard 10 D. 1.
1. In appropriate cases, the court should
consider using a specialized questionnaire addressing particular issues that
may arise. The court should permit the
parties to submit a proposed juror questionnaire. The parties should be required
Vol. 85 — No. 12 — 4/19/2014
to confer on the form and content of the
questionnaire. If the parties cannot agree,
each party should be afforded the opportunity to submit a proposed questionnaire and to comment upon any proposal
submitted by another party.
2. Jurors should be advised of the purpose of any questionnaire, how it will be
used and who will have access to the
information.
3. All completed questionnaires should
be provided to the parties in sufficient
time before the start of voir dire to enable
the parties to adequately review them
before the start of that examination.
American Bar Association, PRINCIPLES FOR
JURIES AND JURY TRIALS 13 (2005). In addition, New Mexico, New York, and Pennsylvania have adopted uniform juror questionnaires
for criminal cases. N. M. R. A. Crim. UJI 14-110;
N. Y. Ct. R., App. E; Pa. St. R. Crim. P. 632(A)(1)
(“Each prospective juror shall complete and
verify the standard, confidential juror information questionnaire required by paragraph (H)
of this rule, and any supplemental questionnaire provided by the court.”).
While juror questionnaires may provide a
number of benefits to the jury selection process, there have been concerns raised about
juror privacy. Mary R. Rose, Juror’s Views of
Voir Dire Questions, 85 JUDICATURE 10 (2001);
Paula L. Hannaford, Safeguarding Juror Privacy: A New Framework for Court Policies and
Procedures, 85 JUDICATURE 18 (2001). Juror
questionnaires pose a different threat to juror
privacy than voir dire in open court, because
juror questionnaires are written records. A concern for juror privacy is reflected in the ABA’s
principles for Juries and Jury Trials in Principle
7, which states: “Courts should protect juror
privacy insofar as consistent with the requirements of justice and the public interest.” Both
New York and Pennsylvania address concerns
for juror privacy by providing for destruction
of juror questionnaires at the conclusion of the
case. N. Y. Ct. R., App. E, ¶ A(1) (“Upon completion of the jury selection, or upon removal
of a prospective juror, the questionnaires shall
be either returned to the respective jurors or
collected and discarded by court staff in a manner that ensures juror privacy.”); Pa. St. R.
Crim. P. 632 (F), (G). Similarly, the Oklahoma
Supreme Court has provided for destruction of
The Oklahoma Bar Journal
851
juror questionnaires. Okla. Dist. Ct. R. 32 and
Okla. Sup. Ct. 1.28(l).
Instruction No. 1.9
Jury’s Duties — To Be Given Prior to
Deliberation
Ladies and Gentlemen of the jury, that completes the argument. This case is now submitted to you for your decision and verdict.
When you have arrived in the jury room you
should first choose one of the jury as a foreperson and then begin deciding the case. You must
not use any method of chance in arriving at
your verdict, but rest it on the opinion of each
juror who agrees with it. The [forms of all possible verdicts]/(form for your verdict) will be
sent to the jury room with you, along with
these written instructions of the Court. If all
twelve (12) of you agree on a verdict, [select the
one (1) correct form of verdict and] only your
foreperson alone need sign it; if you do not all
agree, but at least nine (9) or more of you do,
then only those nine (9) or more agreeing will
each, individually, sign the verdict form. Notify
the Bailiff when you have arrived at a verdict so
that you may return it in open court.
Instruction No. 1.12 (NEW)
IN THE DISTRICT COURT OF _____________
COUNTY, STATE OF OKLAHOMA
)
)
) Case No.
)
)
)
VERDICT FORM
We, the jury, empaneled and sworn in the
above entitled cause, do, upon our oaths, find
as follows:
(Check and complete either 1 or 2 below but
not both)
1. ________________ For Plaintiff, [name],
and against Defendant, [name], and fix the
amount of damages in the sum of $ _____.
2. _________________ For Defendant,
[name], and against Plaintiff, [name].
____________________
Foreperson
852
_________________
____________________
_________________
____________________
_________________
____________________
_________________
____________________
_________________
Notes On Use
This is a general Verdict Form that may
be used in cases where there is a single
plaintiff and a single defendant and comparative negligence is not an issue. This
Verdict Form combines the alternative verdicts for the plaintiff and the defendant
into one form. Instead of using this Verdict
Form, the trial court may use separate Verdict Forms for plaintiff’s and defendant’s
verdicts as in Instruction Nos. 9.37 and
9.40, infra. Combining alternative Verdict
Forms into one form may be appropriate
where there are multiple claims, including
counterclaims, cross-claims, or third-party
claims in the case.
Instruction No. 1.13 (NEW)
Verdict Form, Counterclaim
IN THE DISTRICT COURT OF _____________
COUNTY, STATE OF OKLAHOMA
Verdict Form
One Plaintiff, One Defendant
[Name],
Plaintiff,
v.
[Name],
Defendant.
____________________
_________________
[Name],
Plaintiff,
v.
[Name],
Defendant.
)
)
) Case No.
)
)
)
VERDICT FORM — COUNTERCLAIM
We, the jury, empaneled and sworn in the
above entitled cause, do, upon our oaths, find
as follows:
(Check and complete either 1 or 2 below but
not both)
1. _______ For Defendant, [name], and against
Plaintiff, [name], and fix the amount of damages in the sum of $ ________________.
2. _______ For Plaintiff, [name], and against
Defendant, [name].
____________________
Foreperson
_________________
____________________
_________________
____________________
_________________
____________________
_________________
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Vol. 85 — No. 12 — 4/19/2014
____________________
_________________
____________________
_________________
Notes On Use
This Verdict Form may be given to the
jury separately from the Verdict Form on
plaintiff’s claim in cases where there is a
counterclaim. The Verdict Form may be
adapted for cross-claims, third-party
claims, and other types of claims.
Instruction No. 4.17
Effect Of Income Tax On Award of Damages
NO INSTRUCTION SHOULD BE GIVEN
Comments
Title 12 O.S. 2011 § 577.4 (Laws 2011, c. 16, §
1, eff. Nov. 1, 2011), reads as follows:
Tax Consequences of Award for Damages
in Personal Injury and Wrongful Death
Actions
The Oklahoma Uniform Jury Instructions
(OUJI) applicable in a civil case shall
include an instruction notifying the jury
that no part of an award for damages for
personal injury or wrongful death is subject to federal or state income tax. Any
amount that the jury determines to be
proper compensation for personal injury or
wrongful death should not be increased or
decreased by any consideration for income
taxes. In order to be admitted at trial, any
exhibit relating to damage awards shall
reflect accurate tax ramifications.
In Missouri-K. T. R. R. v. Miller, 1971 OK 68
¶ 38, 486 P.2d 630, 636, the Oklahoma
Supreme Court ruled that the income tax
consequences of a personal injury award
are not a proper consideration for the jury.
Instruction No. 5.9
EXEMPLARY OR PUNITIVE DAMAGESSECOND STAGE
Ladies and Gentlemen of the jury, you have
found in favor of the plaintiff and granted
him/her actual damages, and you have also
found by a separate verdict that the defendant
(acted with reckless disregard of the rights of
others) (and/or) (acted intentionally and with
malice towards others).
You may now, in addition to actual damages,
grant the plaintiff punitive damages in such
Vol. 85 — No. 12 — 4/19/2014
sum as you reasonably believe will punish
defendant and be an example to others.
Punitive damages are not to be considered as
compensation to [Plaintiff], but as punishment
to [Defendant], and as an example to others to
deter them from like conduct. The law does not
require you to award punitive damages, and if
you do so, you must use sound reason in setting the amount. You should be aware that the
purpose of punitive damages is to punish and
not destroy a defendant.
[You may consider evidence of actual harm
to others in determining the seriousness of
the hazard to the public and thus whether the
conduct that harmed the plaintiff was particularly reprehensible or bad. Conduct that
risks harm to many may be more reprehensible than conduct that risks harm to only a
few. However, you may not use punitive damages to punish [Defendant] directly on account
of harms that [Defendant] may have caused to
others.]
In determining the amount of punitive damages, you may consider the following factors:
1. The seriousness of the hazard to the public arising from [Defendant]’s misconduct;
2. The profitability of the misconduct to
[Defendant];
3. How long the conduct lasted and whether it is likely to continue;
4. Whether there were attempts to conceal
the misconduct;
5. How aware [Defendant] was of the conduct and its consequences and how aware
[Defendant] was of the hazard and of its
excessiveness;
6. The attitude and conduct of [Defendant]
upon finding out about the misconduct/
hazard;
7. The financial condition of [Defendant];
8. (If the defendant is a corporation or
other entity) The number and level of
employees involved in causing or concealing the misconduct.
In no event should the punitive damages
exceed the greater of: (Select One)
[$100,000.00 or the amount of actual damages
you have previously awarded].
OR
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853
[$500,000.00, or twice the amount of actual
damages you have previously awarded, or the
increased financial benefit derived by the
defendant as a direct result of the conduct
causing the injury to the plaintiff].
Notes on Use
This Instruction is based on Okla. Stat.
tit. 23, § 9.1 (C)(2)(2001) 23 O.S. 2011 § 9.1.
The Verdict Forms in Instruction Nos. 5.10
and 5.11 should accompany this Instruction. The bracketed paragraph of this
Instruction that comes before the list of factors for punitive damages is based on the
United States Supreme Court’s decision in
Phillip Morris USA v. Williams, 127 S.Ct.
1057 549 U.S. 346 (2007). It should be given
upon request of a party if there is a significant risk of a misunderstanding by the jury
that it should impose punitive damages for
harm to nonparties, either because of the
evidence presented at trial or argument of
counsel. Id. at 356-357. The Supreme Court’s
opinion stated that “conduct that risks
harm to many is likely more reprehensible.”
The Committee discussed the use of “may
be” rather than “is likely,” and decided that
the “may be” language was more appropriate for jury instruction, because reprehensibility is a jury issue.
PREFACE TO THE COMPARATIVE
NEGLIGENCE INSTRUCTIONS
The following uniform instructions reflect
the status of the comparative negligence law as
of November 1, 2004. This area of the law, in
particular, has been the subject of a number of
recent developments and may be subject to
additional changes in the future. Accordingly,
this preface is designed to provide a brief overview of the basic stages of the development of
comparative negligence law in Oklahoma.
1. From statehood until 1973 the Doctrine of
Contributory Negligence controlled in Oklahoma. That doctrine provided that any negligence on the part of the plaintiff which contributed to his injuries operated as a complete bar
to his recovery from any other negligent parties.
2. The Oklahoma legislature replaced the
contributory negligence doctrine in 1973 by
adoption of a new comparative negligence
statute.1 Under the comparative negligence
statute a plaintiff was no longer completely
barred from recovery if his negligence was
854
found to be less than fifty percent of the negligence causing his injuries.2
3. In Laubach v. Morgan, 1978 OK 5, ¶¶ 13-14,
588 P.2d 1071, 1074, the Oklahoma Supreme
Court abolished the joint and several liability
rule in multiple tortfeasor situations and adopted in its stead a rule of several liability only.
Under Laubach, each defendant’s liability to the
plaintiff is limited to that amount which his
proportionate percentage of negligence bears
to the plaintiff’s total damages.
4. The Oklahoma legislature enacted in 1978
a statute providing for contribution among
joint tortfeasors.3 Prior to this legislation, Oklahoma did not afford to any joint tortfeasor the
right of recovery against another joint tortfeasor when the first joint tortfeasor was required
to pay more than his pro rata share of plaintiff’s damages.
5. Boyles v. Oklahoma Natural Gas. Co., 1980
OK 163, 619 P.2d 613, was a negligence action
brought against multiple defendants, but not
involving an allegation of contributory negligence on the part of the plaintiff. On appeal it
was urged that the trial court erred in refusing
to instruct the jury to apportion the several
defendants’ liability under the rule of Laubach.
The Oklahoma Supreme Court responded to
that contention by stating:
There is absolutely nothing in Laubach to
negate the continued force of the common
law rule of joint and several liability in
those negligent torts which fall completely
outside the purview of our comparative
negligence legislation.
1980 OK 163, ¶ 10, 619 P.2d at 616. The Court in
Boyles made clear that it intended to abolish the
joint and several liability rule only in comparative negligence actions, and not other negligent
torts.
6. In 2004, the Oklahoma Legislature adopted
23 O.S. § 15, which provides for several liability
in all actions based on fault and not arising out
of contract, except that a defendant is subject to
joint and several liability if that defendant’s
percentage of negligence is greater than 50%.
The statute does not apply, however, to actions
brought by the state or a political subdivision
of the state. Also, the statute does not apply if
the plaintiff’s percentage of negligence is 0%.
Therefore, if the plaintiff’s percentage of negligence is 0%, then Boyles v. Oklahoma Natural
The Oklahoma Bar Journal
Vol. 85 — No. 12 — 4/19/2014
Gas. Co., 1980 OK 163, 619 P.2d 613, would still
apply.
1. 23 O.S.1991 § 13. Comparative negligence is a statutory substitute for the common-law concept of contributory negligence to which
reference is made in Okla. Const. art. 23, § 6. The concept calls for a
comparison of Plaintiffs fault vis-a-vis that of the “other side” (defendant or defendants). Comparative negligence does not mean comparing or apportioning the negligence among multiple defendants.
2. In 1979 the Comparative Negligence Act was amended to allow
a plaintiff to recover if his negligence was fifty percent or less of the
negligence causing his injuries.
3. 12 O.S.1991 § 832.
Instruction 9.24
BLUE VERDICT FORM, FOR PLAINTIFFMULTIPLE DEFENDANTS- DIRECTIONS
If you find that the occurrence with which
this lawsuit is concerned was directly caused
by the negligence of one or more of the Defendants and not by any contributory negligence
on the part of [Plaintiff], then you shall use the
Blue Verdict Form and find in favor of [Plaintiff] against one or more of the Defendants. If
you so find, [Plaintiff] is entitled to recover the
full amount of any damages which you may
find Plaintiff has sustained as a result of the
occurrence.
Comments
See Comments to Instruction No. 9.23. This
Instruction should be used only if the
action accrued before November 1, 2011, or
was brought by or on behalf of the State of
Oklahoma. See 23 O.S.2011, § 15. Instruction 9.33 or 9.34 should be used instead of
this Instruction for all other actions.
Instruction No. 9.26
BLUE VERDICT FORM, FOR PLAINTIFF;
NON-PARTY INVOLVED- DIRECTIONS
If you find that the occurrence with which
this lawsuit is concerned was directly caused
by the negligence of [Defendant], or was
directly caused by the negligence of both
[Defendant] and [Name of Non-Party], and
not by any contributory negligence on the part
of [Plaintiff], then you shall use the Blue Verdict Form and find in favor of [Plaintiff]. If you
so find, [Plaintiff] is entitled to recover the full
amount of any damages which you may find
[Plaintiff] has sustained as a result of the
occurrence.
Comments
See Comments to Instruction No. 9.23. This
Instruction should be used only if the action
accrued before November 1, 2011, or was
Vol. 85 — No. 12 — 4/19/2014
brought by or on behalf of the State of Oklahoma. See 23 O.S. 2011, § 15. Instruction 9.36
should be used instead of this Instruction for
all other actions.
Instruction No. 9.33
WHITE VERDICT FORM, COMPARATIVE,
TWO DEFENDANTS- DIRECTIONS
If you find that the occurrence was directly
caused by the negligence of either or both of
[names of the Defendants] and the contributory
negligence of [Plaintiff], then you shall use the
White Verdict Form and you must determine the
percentage of each party’s negligence.
If you find that [Plaintiff] was negligent, this
This White Verdict Form requires that you fill
in some percentage of negligence for [him/her
Plaintiff], if you find that [Plaintiff] was contributorily negligent, and then requires that
you fill in some percentage of negligence for
either or both Defendants, if you find that
either or both of them were negligent. These
figures must total one hundred percent (100%),
and may range from 0% to 100%.
If the figures you fill in as the percentage of
negligence of [Plaintiff] is greater than the
combined total of the figures you insert as the
percentage of negligence of [names of the
Defendants], then [Plaintiff] is not entitled to
recover any damages. In this event, you need
not fill in the space provided for the amount of
Plaintiff’s damages, and you should sign and
return the verdict as explained later in these
instructions.
If, on the other hand, the figure you fill in as
the percentage of negligence of [Plaintiff] is
equal to or smaller than the combined total of
the figures you insert as the percentages of
negligence of either or both of the Defendants,
then you shall proceed, as the verdict form
directs, to fill in the total amount of damages
which you find were sustained by [Plaintiff].
As the verdict form advises, in determining
this damages figure, you should complete
completely disregard the respective percentages of negligence which you have fixed for
the parties.
You are instructed that if you use the White
Verdict Form, whatever dollar amount you
insert as the damages sustained by [Plaintiff]
will be reduced by the Court by that percentage of negligence which you have attached to
[him/her] and that the amount of damages for
which each of the Defendants will be liable will
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855
be limited to that percentage of negligence
which you have attached to each of them.
Notes on Use
This Instruction should be used for civil
actions accruing after November 1, 2011.
Comments
This Instruction assumes that the
“amount of damages allocated to that tortfeasor” in 23 O.S. § 15 refers to the percentage of negligence determined by the jury.
Instruction No. 9.34
WHITE VERDICT FORM, COMPARATIVE,
MULTIPLE DEFENDANTS- DIRECTIONS
If you find that the occurrence was directly
caused by the negligence of any or all of [names
of the Defendants], and the contributory negligence of [Plaintiff], then you shall use the White
Verdict Form and you must determine the percentage of each party’s negligence.
If you find that [Plaintiff] was negligent, this
This White Verdict Form requires that you fill
in some percentage of negligence for [Plaintiff], if you find that [Plaintiff] was contributorily negligent, and then requires that you fill in
some percentage of negligence for all of the
Defendants, if you find that any or all of them
were negligent. These figures must total one
hundred percent (100%), and may range from
0% to 100%.
If the figures you fill in as the percentage of
negligence of [Plaintiff] is greater than the
combined total of the figures you insert as the
percentages of negligence of the Defendants,
then [Plaintiff] is not entitled to recover any
damages. In this event, you need not fill in the
space provided for the amount of Plaintiff’s
damages, and you should sign and return the
verdict as explained later in these instructions.
If, on the other hand, the figure you fill in as
the percentage of negligence of [Plaintiff] is
equal to or smaller than the combined total of
the figures you insert as the percentages of
negligence of the Defendants, then you shall
proceed, as the verdict form directs, to fill in
the total amount of damages which you find
were sustained by [Plaintiff]. As the verdict
form advises, in determining this damages figure, you should completely disregard the
respective percentages of negligence which
you have fixed for the parties.
856
You are instructed that if you use the White
Verdict Form, whatever dollar amount you
insert as the damages sustained by [Plaintiff]
will be reduced by the Court by that percentage of negligence which you have attached to
[him/her] and that the amount of damages for
which each of the Defendants will be liable will
be limited to that percentage of negligence
which you have attached to each of them.
Instruction No. 9.36
WHITE VERDICT FORM, COMPARATIVE,
NON-PARTY INVOLVED- DIRECTIONS
If you find that the occurrence was directly
caused by the negligence of either or both
[Defendant] and [name of the non-party], and
the contributory negligence of [Plaintiff], then
you shall use the White Verdict Form and you
must determine the percentage of each person’s negligence.
If you find that [Plaintiff] was negligent, this
This White Verdict Form requires that you fill
in some percentage of negligence for the Plaintiff, if you find that [Plaintiff] was contributorily negligent, and then requires that you fill in
some percentage of negligence for either or
both the Defendant and the non-party. These
figures must total one hundred percent (100%),
and may range from 0% to 100%.
If the figure you fill in as the percentage of
negligence of [Plaintiff] is greater than the
combined total of the figures you insert as the
percentages of negligence of [Defendant] and
[name of the non-party], then [Plaintiff] is not
entitled to recover any damages. In this event,
you need not fill in the space provided for the
amount of Plaintiff’s damages, and you should
sign and return the verdict as explained later in
these instructions.
If, on the other hand, the figure you fill in as
the percentage of negligence of [Plaintiff] is
equal to or smaller than the combined total of
the figures you insert as the percentages of
negligence of either or both [Defendant] and
[name of the non-party], then you shall proceed, as the verdict form directs, to fill in the
total amount of damages which you find were
sustained by [Plaintiff]. As the verdict form
advises, in determining this damages figure,
you should completely disregard the respective percentages of negligence which you have
fixed for the Plaintiff, the Defendant, and the
non-party.
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Vol. 85 — No. 12 — 4/19/2014
You are instructed that if you use the White
Verdict Form, whatever dollar amount you
insert as the damages sustained by [Plaintiff]
will be reduced by the Court by the sum of the
percentages of negligence which you have
attached to [Plaintiff] and [name of the nonparty].
Instruction No. 18.1
False Representation — Elements
of Liability
In order for [Plaintiff] to recover from
[Defendant] on [his/her] claim of deceit, you
must find that all of the following have been
established by clear and convincing evidence:
1. That [Defendant] made a material representation;
2. That it was false;
3. That [Defendant] made it when [he/she]
knew it was false, or made it as a positive
assertion recklessly, without any knowledge of
its truth;
4. That [Defendant] made it with the intention
that it should be acted upon by [Plaintiff];
5. That [Plaintiff] acted in reliance upon it;
and
6. That [Plaintiff] thereby suffered injury.
Notes on Use
This instruction should be accompanied
by Instruction No. 3.2, supra, which has a
definition of clear and convincing evidence.
Comments
D & H Co. Inc. v. Schultz, 579 P.2d 821,
824 (Okla.1978); Steiger v. Commerce Acceptance of Oklahoma City, Inc., 455 P.2d 81, 86
(Okla.1969) (all elements must be alleged
and proved); Ramsey v. Fowler, 308 P.2d 654,
656 (Okla.1957); 76 O.S. 1991 2011, § 3. The
Oklahoma Supreme Court set forth the elements of a claim for fraud in Rogers v.
Meiser, 2003 OK 6, ¶ 17, 68 P.3d 967, 977, as
follows:
The elements of common law fraud are:
1) a false material misrepresentation, 2)
made as a positive assertion which is
either known to be false, or made recklessly without knowledge of the truth, 3)
with the intention that it be acted upon,
and 4) which is relied on by the other
party to his/her own detriment. Gay v.
Vol. 85 — No. 12 — 4/19/2014
Akin, 1988 OK 150, ¶ 7, 766 P.2d 985,989;
D & H Co., Inc. v. Shultz, 1978 OK 71, ¶ 11,
579 P.2d 821, 824; Ramsey v. Fowler, 1957
OK 61, 308 P.2d 654, Syllabus by the Court.
Fraud is never presumed and it must be
proved by clear and convincing evidence.
Brown v. Founders Bank and Trust Co., 1994
OK 130, ¶ 12, n.17, 890 P.2d 855, 862.
Instruction No. 18.2
Nondisclosure Or Concealment — Elements
of Liability
In order for [Plaintiff] to recover from
[Defendant] on [his/her] claim of deceit, you
must find that all of the following have been
established by clear and convincing evidence:
1. That [Defendant] concealed or failed to
disclose a past or present fact which he had a
duty to disclose;
2. That the fact was material;
3. That [Defendant] concealed or failed to
disclose it with the intent of creating a false
impression of the actual facts in the mind of
[Plaintiff];
4. That [Defendant] concealed or failed to
disclose it with the intention that it should be
acted upon by [Plaintiff];
5. That [Plaintiff] acted in reliance upon it;
and
6. That [Plaintiff] thereby suffered injury.
Notes on Use
This instruction should be accompanied
by Instruction No. 3.2, supra, which has a
definition of clear and convincing evidence.
Comments
Hubbard v. Bryson, 1970 OK 140, ¶ 26, 474
P.2d 407, 410 (Okla. 1970 “If on account of
peculiar circumstances there is a positive
duty on the part of one of the parties to a
contract to speak, and he remains silent to
his benefit and to the detriment of the other
party, the failure to speak constitutes
fraud.”). See also United States v. Curtis, 537
F.2d 1091, 1097 (10th Cir. (“[F]raudulent
representations may be effected by deceitful statements or half-truths of the concealment of material facts.”), cert. denied, 429
U.S. 962 (1976).
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857
Instruction No. 21.1
Instruction No. 21.2
EMPLOYMENT AT WILL
The general rule is that an employment contract is terminable at will, which means that
either the employer or the employee has the
right to terminate the employment at any time
for any reason or no reason at all without liability to the other for doing so.
Notes on Use
This Instruction should be used to introduce the Instructions in Part A of this
Chapter dealing , which deal with wrongful discharge in violation of public policy
and breach of employment contracts.
Comments
This Instruction is a statement of the
traditional employment at will doctrine.
See Burk v. K-Mart Corp., 1989 OK 22, ¶ 5,
770 P.2d 24, 26 (Okla. 1989) (“This Court
has long recognized the basic principle that
an employment contract of indefinite duration may be terminated without cause at
any time without incurring liability for
breach of contract.”). The Oklahoma Supreme Court noted in the Burk case that the
employment at will doctrine is subject to
various statutory exceptions as well as a
case law exception based on public policy.
Id. ¶¶ 6, 17, 19, 770 P.2d at 26, 28, 29 at
26-28. In addition, the Supreme Court has
stated that the parties to an employment
contract may restrict the employer’s power
to discharge an employee at will through
either their express or implied agreement.
Hinson v. Cameron, 1987 OK 49, ¶ 14, 742
P.2d 549, 554 (Okla. 1987). The Oklahoma
Supreme Court stated in the Hinson case
that various factors, including statements
in employer handbooks and an employee’s
detrimental reliance on the employer’s
past practices, may be considered to determine whether an implied contract right to
job security exists. Id. ¶ 14, 742 P.2d at 55455. It has also held, though, that an implied
obligation of good faith and fair dealing is
not applicable to the termination of employment contracts. 1989 OK 22, ¶ 22, 770 P.2d
at 29. The following Instructions are concerned with these exceptions to the employment at will doctrine.
858
Wrongful Discharge - Public Policy
Exception - Refusal to Violate Public Policy
There is an exception to the general rule that
an employment contract is terminable at will, if
an employee is discharged for refusing to act in
violation of an established and well-defined
public policy. [Plaintiff] claims to have been
wrongfully discharged by [Defendant] in retaliation for refusing to [set out the nature of the
act that the plaintiff claims violated public
policy]. In order to prevail on the claim of
wrongful discharge in violation of public policy, [Plaintiff] must show by the weight of the
evidence that:
1. [Plaintiff] was discharged from [his/her]
employment with [Employer Defendant];
2. During the course of [Plaintiff]’s employment with Employer [Defendant], [Plaintiff]
refused to [set out the nature of the act that the
plaintiff claims violated public policy];
2.3. A significant factor in the decision to discharge [Plaintiff] was retaliation for Plaintiff’s
refusal to [set out the nature of the act that the
plaintiff claims violated public policy]; and
3. 4. [Plaintiff] was damaged as a result of
the discharge.
Notes on Use
This Instruction should be used with
Instruction Nos. 21.1, 21.5, 21.6, 21.9, and
21.11 in cases where the plaintiff is relying
on the public policy exception to the
employment at will doctrine and claiming
that the discharge was in retaliation for
plaintiff’s refusal to act in violation of an
established and well-defined public policy.
For an Instruction where the plaintiff’s
claim is that the discharge was in retaliation for plaintiff’s performing an act consistent with a clear and compelling public
policy. See Instruction No. 21.3, infra. For an
Instruction where the plaintiffs claim is
that the discharge was on account of unlawful employment discrimination, see Instruction No. 21.4, infra.
Comments
This Instruction is based on the public
policy exception to the employment at will
doctrine that was recognized in Vannerson
v. Board of Regents of the Univ of Oklahoma,
1989 OK 125, 784 P.2d 1053 (Okla. 1989);
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Vol. 85 — No. 12 — 4/19/2014
Burk v. K-Mart Corp., 1989 OK 22, ¶¶ 17-20,
770 P.2d 24, 28-29 (Okla. 1989); and Hinson
v. Cameron, 1987 OK 49, ¶ 10, 742 P.2d 549,
552-53 (Okla. 1987).
The Instruction covers those cases where
the plaintiff claims the discharge was in
retaliation for the plaintiff’s refusal to act in
violation of a public policy. Accordingly, it
does not include bad faith or malice as a
separate element. See generally Gilmore v.
Enogex, Inc., 1994 OK 76, ¶ 11, 878 P.2d 360,
364 (Okla. 1994) (public policy exception
requires that the employer was motivated
by either bad faith, malice, or retaliation).
Instruction No. 21.3
Wrongful Discharge - Public Policy
Exception — Consistant Consistent With
Public Policy
There is an exception to the general rule that
an employment contract is terminable at will, if
an employee is discharged for performing an
act consistent with a clear and compelling public policy. [Plaintiff] claims to have been wrongfully discharged by [Defendant] in retaliation
for [set out the nature of the act that the plaintiff claims is protected]. In order to prevail on
the claim of wrongful discharge in violation of
public policy, [Plaintiff] must show by the
weight of the evidence that:
1. [Plaintiff] was discharged from [his/her]
employment with [Defendant];
2. During the course of [Plaintiff]’s employment with Defendant, [Plaintiff] [set out the
nature of the act that the plaintiff claims is
protected].
3. A significant factor in the decision to discharge [Plaintiff] was retaliation for Plaintiff’s
[set out the nature of the act that the plaintiff
claims is protected], and
4. [Plaintiff] was damaged as a result of the
discharge.
Notes on Use
This Instruction should be used with
Instruction Nos. 21.1, 21.6, 21.9, and 21.11
in cases where the plaintiff is relying on the
public policy exception to the employment
at will doctrine and claiming that the discharge was in retaliation for plaintiff’s performing an act consistent with a clear and
compelling public policy. For an Instruction
where the plaintiff’s claim is that the disVol. 85 — No. 12 — 4/19/2014
charge was in retaliation for plaintiff’s refusal to act in violation of an established and
well-defined public policy, see Instruction
No. 21.2, supra. For an Instruction where
the plaintiffs claim is that the discharge
was on account of employment discrimination, see Instruction No. 21.4, infra.
Instruction No. 21.4
Wrongful Discharge - Public Policy
Exception - Employment Discrimination
There is an exception to the general rule that
an employment contract is terminable at will, if
an employee is discharged in violation of the
public policy against unlawful employment
discrimination. [Plaintiff] claims to have been
wrongfully discharged by [Defendant] because
of [his/her] [set out Plaintiffs protected status]. In order to prevail on the claim of wrongful discharge in violation of public policy,
[Plaintiff] must show by the weight of the evidence that:
1. [Plaintiff] was discharged from [his/her]
employment with [Employer];
2. [Plaintiff] is [set out Plaintiffs protected
status].
3. A significant factor in [Defendant]’s discharge of [Plaintiff] was unlawful employment discrimination against [him/her] because
of [his/her] [set out Plaintiffs protected status]; and
4. [Plaintiff] was damaged as a result of the
discharge.
Notes on Use
This Instruction should only be given if
a cause of action accrued prior to the effective date of 25 O.S. Supp. 2011 § 1350 (eff.
November 1, 2011).
This Instruction should be used with
Instruction Nos. 21.1, 21.7, 21.9, and 21.11
in cases where the plaintiff is relying on the
public policy exception to the employment
at will doctrine and claiming that the discharge was on account of employment
discrimination. For an Instruction where the
plaintiffs claim is that the discharge was in
retaliation for plaintiffs refusal to act in violation of an established and well-defined
public policy, see Instruction No. 21.2, supra.
For an Instruction where the plaintiffs claim
is that the discharge was in retaliation for
plaintiffs performing an act consistent with
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859
a clear and compelling public policy, see
Instruction No. 21.3, supra.
Comments
In Tate v. Browning-Ferris, Inc., 1992 OK
72 , ¶ 10, 833 P.2d 1218, 1225, the Oklahoma
Supreme Court held that the public policy
exception was applicable to a racially motivated discharge or one in retaliation for an
employee’s filing a racial discrimination
complaint. Later, in Kruchowski v. The Weyerhauser Co., 2008 OK 105, ¶ 23, 202 P.3d
144, and Shirazi v. Childtime Learning Center,
2009 OK 13, ¶ 12, 204 P.3d 75, the Supreme
Court decided that the public policy exception also applied to victims of unlawful
discrimination, because victims of all forms
of employment discrimination, including
race, color, religion, sex, national origin,
age and handicap, must receive evenhanded treatment under art. 5, § 46 of the Oklahoma Constitution.
Instruction No. 21.5
Employee Discharged For Refusing to
Violate Public Policy
In order to win on the claim of wrongful discharge [Plaintiff] must show that [Defendant]
required [him/her] to commit an act that was
contrary to a clear statement of public policy of
Oklahoma [or the United States]. You are
instructed that the following acts are forbidden
by law [or the Constitution or a statute]:
Notes on Use
The trial court should inform the jury of
the nature of the activities that are against
public policy so that the jury can determine
whether the defendant instructed or
required the plaintiff to perform any of
them as part of the employment.
Comments
The trial court has the responsibility for
determining public policy, and “it is then
the jury’s duty to examine the facts and
decide if the public policy was violated.”
Pearson v. Hope Lumber & Supply Co., Inc.,
1991 OK 112, ¶ 4, 820 P.2d 443, 444 (Okla.
1991).
Instruction No. 21.6
Employee Discharged For Performing Act
Consistent With Public Policy
860
In order to win on the claim of wrongful discharge [Plaintiff] must show that [Defendant]
discharged [him/her] for performing an act
that was consistent with a clear and compelling
public policy of Oklahoma [or the United
States]. You are instructed that [describe the
act] is such an act [or the following are such
acts:] ]:.
Notes on Use
These Instructions may be adapted for
use in retaliatory discharge cases under 85
O.S. 1991 § 5. In such cases, the last sentence of this Instruction should be modified to read: “You are instructed that [filing
a claim for Workers’ Compensation in
good faith, or retaining a lawyer in connection with a claim for Workers’ Compensation, or testifying in a Workers’ Compensation case] is such an act.”
Comments
The Oklahoma Supreme Court held in
Smith v. Farmers Coop. Ass’n of Butler, 1992
OK 11, ¶¶ 13-15, 825 P.2d 1323, 1326-27
(Okla. 1992), that the public policy exception applied to the discharge of an at will
employee, who was also a city mayor, in
retaliation for his voting to deny his
employer’s request for a zoning variance.
Similarly, the Supreme Court determined
in Groce v. Foster, 1994 OK 88 ¶ 1, 880 P.2d
902, 903 (Okla. 1994), that an employee’s
right to file a negligence action against a
third party employee for on the job injuries
was protected under the public policy
exception. In contrast, in Vannerson v. Board
of Regents of the Univ. of Oklahoma, 1989 OK
12, ¶ 10, 784 P.2d 1053, 1055 (Okla. 1989),
the Supreme Court held that a violation of
a University of Oklahoma internal policy
on maintaining accurate records did not
“rise to the level of a constitutional, statutory or decisional statement of public policy of the State of Oklahoma.” Accordingly,
it reversed a plaintiff’s judgment on a
wrongful discharge claim that was based
on the public policy exception. In addition,
in Gilmore v. Enogex, Inc., 1994 OK 76, ¶¶
14, 17, 21, 878 P.2d 360, 368 365-68 (Okla.
1994), the Supreme Court decided that an
employee’s discharge for refusal to submit
to a random drug test did not come within
the public policy exception. See also McKennon v. Nashville Banner Publishing Co.,
115 S.Ct. 879, 885-86 513 U.S. 352, 360-61
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Vol. 85 — No. 12 — 4/19/2014
(1995) (after-acquired evidence of employee wrongdoing is not complete bar to
recovery, but it may be taken into account
in determining the appropriate remedy);
Mosley v. Truckstops Corp. of Am., 1993 OK
79, ¶ 21, 891 P.2d 577, 585 (Okla. 1993) (“A
jury instruction which relieves an employer of liability for terminating an employee
engaged in misconduct discovered after
the employee was terminated is inopposite
[sic] to Oklahoma law and giving the
instruction is reversible error. “) (emphasis
in original).
Instruction No. 21.7
Employee Discharged Because Of
Discrimination
In order to prevail on the claim of wrongful
discharge [Plaintiff] must show that [Defendant] discharged [him/her] because of [his/her]
[set out the protected status]. You are instructed
that under [federal and/or Oklahoma] law an
employee may not be discharged because of
[his/her] [set out the protected status].
Notes on Use
This Instruction should only be given if
a cause of action accrued prior to the effective date of 25 O.S. Supp. 2011 § 1350.
Included among the typical categories of
protected status under federal and Oklahoma law are race, color, national origin,
religion, gender, disability, and age. Additional categories may be protected under
constitutional, statutory, and decisional
law. The judge has the responsibility of
determining whether the plaintiff has a
protected status.
Comments
The Oklahoma Supreme Court held in
Tate v. Browning-Ferris, Inc ., 1992 OK 72 , ¶
10, 833 P.2d 1218, 1225, that the public policy exception was applicable to a racially
motivated discharge. Later, in Kruchowski v.
The Weyerhauser Co., 2008 OK 105, ¶ 23, 202
P.3d 144, and Shirazi v. Childtime Learning
Center, 2009 OK 13, ¶ 12, 204 P.3d 75, the
Supreme Court decided that the public
policy exception also applied to victims of
unlawful discrimination, because victims
of all forms of employment discrimination
must receive evenhanded treatment under
art. 5, § 46 of the Oklahoma Constitution.
Instruction No. 21.8
Vol. 85 — No. 12 — 4/19/2014
Constructive Discharge
An employer is considered to have discharged an employee if the employer intentionally made or allowed either knew or should
have known that the employee’s working conditions to become were so intolerable that a
reasonable person in the employee’s situation
would feel that [he/she] had no choice but to
quit. You should consider whether the employer physically threatened or humiliated the
employee, how often the employer did so, and
whether the employer unreasonably interfered
with the employee’s work performance.
Notes on Use
This Instruction is intended for cases
where there is a jury issue concerning constructive discharge of an employee.
Comments
This Instruction is derived from the test
for constructive discharge set out in Collier
v. Insignia Financial Group, 1999 OK 49, ¶
10, 981 P.2d 321, 324 one on constructive
discharge that the Oklahoma Supreme
Court approved for Workers’ Compensation retaliatory discharge cases under Okla.
Stat. tit. 85, 5 (1991), in Wilson v. HessSweitzer & Brant, Inc., 864 P.2d 1279, 128283 (Okla. 1993). The Supreme Court has not
yet ruled whether constructive discharge is
applicable to public policy tort cases.
Instruction No. 21.9
Significant Factor For Discharge
The evidence may show that [Plaintiff] was
discharged for more than one reason. Although
[Plaintiff] need not prove that [set out what
plaintiff claims violated public policy] was
the only reason [he/she] was discharged,
[Plaintiff] must prove that the [set out what
plaintiff claims violated public policy] was a
significant factor in the decision of [Defendant] to discharge [him/her]. In order for you
to decide that [set out what plaintiff claims
violated public policy] was a significant factor,
you must determine whether [Defendant]
would have discharged [Plaintiff] even if
[Plaintiff] had [not] [set out the act that Plaintiff either performed or refused to perform]
[or was not a (set out the protected status)],
and everything else remained the same.
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861
Notes on Use
This Instruction should be given only if
there is evidence offered of more than one
reason for the employee’s discharge, and
one reason was contrary to public policy
and the other was not.
Comments
This Instruction is drafted in light of the
decision of the Tenth Circuit Court of
Appeals in White v. American Airlines, Inc.,
915 F.2d 1414 (10th Cir. 1990). Applying
Oklahoma law, the Tenth Circuit reversed a
judgment for an employee on a jury verdict
in a wrongful discharge case because the
trial court failed to instruct the jury that the
employer should be liable only if the discharge of the employee was “significantly
motivated” by the employee’s refusal to
commit perjury. 915 F.2d at 1421. See also
Estrada v. Port City Properties, Inc., 2011 OK
30, n. 20, 258 P.3d 495, 502 (“[I]f retaliation
motivations comprise a significant factor in
an employer’s decision to terminate an
employee, even though other legitimate
reasons exist to justify the termination, the
discharge violated the intent of [85 O.S.
2001,] § 5.”); Vasek v. Board of County Commissioners, 2008 OK 35, ¶ 14, 186 P.3d 928,
932 (wrongful discharge claim must allege
discharge of employee “in significant part
for a reason that violates an Oklahoma
public policy goal”). The last sentence of
the Instruction is based on Judge Easterbrook’s suggested instruction in Gehring v.
Case Corp., 43 F.3d 340, 344 (7th Cir. 1994).
Instruction No. 21.10
Contractual Limitations On Discharge
One of the exceptions to the general rule that
an employment contract is terminable at will
arises when an employer and an employee
agree that an employer can only discharge an
employee [Specify Substantive Restrictions
on Discharge, e.g., (for certain reasons), (under
certain conditions), or (after a certain amount
of time)].
Sometimes this agreement is expressed
directly in the form of a written contract which
specifically states when, how, or why an
employee may be discharged.
Other times, this agreement may be implied
from things the employer has said to the
employee, [orally or in writing], such as [state862
ments in an employer’s handbook], [statements in an employer’s policy manuals], [oral
promises made by the employer to the
employee regarding the employment relationship], [the employer’s past practices in
dealing with employees].
In this case, [Plaintiff] has alleged that [he/
she] had an [express/implied] agreement, or
contract, with [his/her] employer that [he/she]
would not be discharged except for [Specify
Reasons, Conditions, Time Limitations, etc.]
and that the [Defendant] breached this agreement, or contract, when [Defendant] discharged [him/her].
In order for [Plaintiff] to prevail, [he/she]
must prove that:
1. [Defendant] made an offer to [Plaintiff] to
accept [or continue] [his/her] employment;
2. [Defendant]’s offer included either express
or implied terms that [Plaintiff] would be discharged only [Specify Reasons, Conditions,
Time Limitations, etc.];
3. These terms were definite and of the sort
that a reasonable person would justifiably rely
upon;
4. [Plaintiff] relied upon these terms when
[he/she] accepted the offer by starting to work
for [Defendant] [or continuing to work for]
[Defendant] if the offer was made during the
course of [Plaintiff]’s employment with
[Defendant];
5. [Defendant] discharged [Plaintiff] [(for a
reason(s) other than those)/(under conditions
other than those)/(prior to the time)] contained in the express or implied terms agreed
upon by the [Plaintiff] and the [Defendant];
and
6. [Plaintiff] suffered damages as a direct
result of the discharge.
Notes on Use
This Instruction should be used along
with Instruction Nos. 21.1 and 21.12 in cases
where the plaintiff claims that a contract
with the employer limits the employer’s
power to discharge the employee at will.
Comments
The Oklahoma Supreme Court recognized in Hinson v. Cameron, 1987 OK 49, ¶
14, 742 P.2d 549, 554 (Okla. 1987), that
implied contractual provisions may restrict
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Vol. 85 — No. 12 — 4/19/2014
an employer’s freedom to discharge an at
will employee. The implied contractual
provisions may arise from a variety of
sources, including employee manuals, oral
assurances, and company policies, which
may be construed as offers for unilateral
contracts that are accepted by employees
either entering employment or continuing
employment. See generally Johnson v. Nasca,
1990 OK CIV APP 87, ¶ 6, 802 P.2d 1294,
1296 (Okla. Ct. App. 1990) (“[A] handbook
alone may constitute an offer of a unilateral
contract.”); Langdon v. Saga Corp., 1976 OK
CIV APP 65, ¶ 10, 569 P.2d 524, 528 (Okla.
Ct. App. 1976) (“We thus conceive personnel policies extending benefits as unilateral
offers which are accepted by continued
performance.”); Jackson v. Integra, Inc., 952
F.2d 1260, 1261 (10th Cir. 1991) (concluding
that Oklahoma law would allow an
employee manual to create an implied contract in appropriate circumstances); Carnes v.
Parker, 922 F.2d 1506, 1510-11 (10th Cir. 1991)
(under Oklahoma law, employment at will
relationship was altered by personnel manual); Williams v. Maremont Corp., 875 F.2d 1476,
1484 (10th Cir. 1989) (in order for statements
in employee handbook to alter employment
at will contract there must be a showing that
they induced acceptance or continuation of
employment).
The Oklahoma Supreme Court has also
held that for an employer’s promises to
restrict its power to discharge an employee,
they must be in definite terms, rather than
vague assurances. Hayes v. Eateries, Inc.,
1995 OK 108, ¶ 12, 905 P.2d 778, 783 (Okla.
1995); Gilmore v. Enogex, Inc., 1994 OK 76, ¶
25, 878 P.2d 360, 368 (Okla. 1994). See also
Avey v. Hillcrest Medical Ctr., 1991 OK CIV
APP 48, ¶ 10, 815 P.2d 1215, 1217 (Okla. Ct.
App. 1991) (neither employee handbook
nor policy and procedure manual gave
assurances of job security to at will employees); Dupree v. United Parcel Serv., Inc., 956
F.2d 219, 222-23 (10th Cir. 1992) (statements
in policy manuals and oral statements were
too vague to create an implied contract). In
addition, an employee’s reliance on the
employer’s promises “must be reasonable
under an objective standard, not merely the
subjective belief of the employee.” Hayes,
supra, 1995 OK 108, ¶ 17, 905 P.2d at 784.
Instruction No. 21.11
Vol. 85 — No. 12 — 4/19/2014
Wrongful Discharge - Damages
If you find in favor of [Plaintiff] on the issue
of liability, then you must determine the amount
that will reasonably and fairly compensate
[him/her] for the damages [he/she] suffered as
a direct result of the discharge. In fixing the
amount of damages, you may consider the following elements:
A. The difference between the amount that
[Plaintiff] was entitled to under the employment contract with [Defendant] and what
[Plaintiff] has earned since the discharge [or
could have earned using reasonable diligence
in finding employment of comparable quality
as the employment with [Defendant]]; [and]
[B. The loss of earnings in the future that
[Plaintiff] would be reasonably likely to suffer
as a direct result of the discharge, if [he/she]
used reasonable diligence in finding employment of comparable quality as the employment
with [Defendant];] and
C. Any physical or mental distress or anguish
that [Plaintiff] suffered as a result of the discharge.
Notes on Use
This Instruction should be used if the
plaintiff is seeking recovery in tort under
the public policy exception to the employment at will doctrine (Instruction Nos. 21.221.9). Instruction No. 21.12, infra, should be
used if the plaintiff is relying on a breach of
contract theory (Instruction No. 21.10). Paragraph B is bracketed because the Oklahoma
law is unclear whether future earnings are
recoverable under a tort theory.
Comments
Because the Oklahoma Supreme Court
has not yet decided the issue, it is not certain whether future damages are recoverable for wrongful discharge. But cf. Marshall v. TRW, Inc., 900 F.2d 1517, 1522 (10th
Cir. 1990) (future damages could be awarded in lieu of reinstatement under Okla.
Stat. tit. 85, §§ 5-6 (1991) only upon a showing of continuing hostility in the workplace
that would make reinstatement inappropriate). Instruction No. 5.5 should be used
in addition to this Instruction if punitive
damages are sought. In retaliatory discharge cases brought pursuant to 85 O.S.
2011, § 341, Instruction No. 5.5 should be
modified to state that the punitive damages
The Oklahoma Bar Journal
863
may not exceed the $100,000. See id. §
341(E). For a discussion of punitive damages in retaliatory discharge cases under 85
O.S. 1991 § 5, see Wilson v. Hess-Sweitzer &
Brant, Inc., 1993 OK 156, ¶¶ 2-12, 864 P.2d
1279, 1280-82. On the issue of the recovery
of damages for mental distress, see Williams
v. ABS Enters, Inc., 1987 OK CIV APP 6, ¶ 7,
734 P.2d 854, 857 (recovery for mental
anguish allowed when employee was discharged for filing a Workers’ Compensation claim).
Instruction No. 21.12
Breach Of Employment Contract - Damages
If you find in favor of [Plaintiff] on the issue
of liability, then you must determine the amount
of [his/her] damages. This is the amount of
money that is needed to put [him/her] in as
good a position as [he/she] would have been if
the contract had not been breached. In this
case, the amount of damages should be determined as follows:
A. The difference between the amount that
[Plaintiff] was entitled to under the employment contract with [Defendant] and what
[Plaintiff] has earned since the discharge [or
could have earned using reasonable diligence
in finding employment of comparable quality
as the employment with [Defendant]]; [and]
[B. The loss of earnings during the remaining
term of the contract that [Plaintiff] would be
reasonably likely to suffer as a direct result of
the discharge, if [he/she] used reasonable diligence in finding employment of comparable
quality as the employment with [Defendant].]
Notes on Use
This Instruction should be used if the
plaintiff is relying on a breach of contract
theory (Instruction No. 21.10). Instruction
No. 21.11, supra, should be used if the
plaintiff is seeking recovery in tort under
the public policy exception to the employment at will doctrine (Instruction Nos.
21.2-21.9). Paragraph B should be included
only if the term of the contract extended
beyond the date of trial.
Comments
See Seidenbach’s, Inc. v. Williams, 1961 OK
77, ¶ 9, 361 P.2d 185, 187-88 (Okla. 1961) (no
recovery for mental anguish for breach of
contract that did not cause physical injury).
864
Instruction No. 21.21
Employment Based Discrimination Elements
[Plaintiff] claims that [Defendant] discriminated against [him/her] because of [his/her]
[set out Plaintiff’s protected status] by [specify adverse employment action such as terminating his/her employment, or failing to hire
or promote him/her]. In order to prevail on the
claim of employment based discrimination,
[Plaintiff] must show by the weight of the evidence that:
1. [Plaintiff] is [set out Plaintiff’s protected
status].
2. [Defendant] discriminated against [him/
her] because of [his/her] [set out Plaintiff’s
protected status] by [specify adverse employment action]; and
3. [Plaintiff] was damaged as a result of the
discrimination.
Notes on Use
This Instruction should be used in cases
involving claims for employment based
discrimination under 25 O.S.Supp. 2013, §
1350 along with Instruction No. 21.23, infra.
The Statute provides a cause of action for
discrimination arising from an employment related matter based on race, color,
religion, sex, national origin, age, disability,
genetic information with respect to the
employee, or retaliation. If the claim involves retaliation related to employment
discrimination, Instruction No. 21.22, infra,
should be used instead of this Instruction.
Instruction Nos. 21.8 and 21.9 may also be
used as appropriate along with this and
other Instructions dealing with employment based discrimination.
Comments
Prior to 2011, The Oklahoma Supreme
Court recognized common law claims for
wrongful discharge for employment discrimination based on the disparities of
remedies available for employment discrimination for race, color, religion, sex,
national origin, age, and handicap. See Shirazi v. Childtime Learning Center, 2009 OK
13, ¶ 12, 204 P.3d 75, 79; Kruchowski v. The
Weyerhauser Co., 2008 OK 105, ¶ 36, 202
P.3d 144, 154. In 2011, the Oklahoma Legislature amended Oklahoma’s Anti-Discrim-
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Vol. 85 — No. 12 — 4/19/2014
ination Act, 25 O.S. 2011 §§ 1101-1901, to
create a statutory cause of action for employment based discrimination, and abolished the common law remedies for employment based discrimination. Title 25
O.S. 2013, § 1350 authorizes the filing of a
civil action pursuant to a Notice of a Right
to Sue from the Oklahoma Attorney General’s Office of Civil Rights Enforcement,
and it provides for a jury trial of any facts
in dispute in the action.
The remedies provided by § 1350 are
injunctive relief, backpay, and an additional
amount of backpay as liquidated damages.
Instruction No. 21.22
Employment Based Discrimination Retaliation
[Plaintiff] claims that [Defendant] discriminated against [him/her] because of [his/her]
[set out the protected activity relating to discrimination that Plaintiff engaged in] by
[specify adverse employment action such as
terminating his/her employment, or failing to
hire or promote him/her]. In order to prevail
on the claim of retaliation, [Plaintiff] must
show by the weight of the evidence that:
1. [Plaintiff] is [set out the protected activity
that Plaintiff engaged in].
2. [Defendant] retaliated against [him/her]
because of [his/her] [set out the protected
activity] by [specify adverse employment
action]; and
3. [Plaintiff] was damaged as a result of the
retaliation.
Notes on Use
This Instruction should be used in cases
involving claims for retaliation for protected activities involving discrimination
under 25 O.S.Supp. 2013, § 1350 along with
Instruction No. 21.23, infra.
action] had not occurred. [The amount of
Plaintiff’s earnings since termination of
employment or amounts earnable with reasonable diligence must be deducted from the
amount of backpay.] In addition, you may also
award an additional amount as liquidated
damages.
Notes on Use
The bracketed word “additional” should
be included in the sentence if the case did
not involve termination of employment.
The third sentence in brackets should be
used if the case involved termination of
employment.
Comments
The remedies available under 25 O.S.
Supp. 2013, § 1350 for employment based
discrimination are injunctive relief, backpay, and an additional amount as liquidated damages. The statute does not specify
how the liquidated damages are to be
determined. In appropriate situations the
trial judge may provide an instruction
which defines liquidated damages and
specifies the manner of calculating liquidated damages. See McDonald v. Corporate
Integris Health, 2014 OK 10, - P.3d - (C.J.
Colbert concurring).
Instruction No. 22.7
Exemplary or Punitive Damages —
Second Stage
Ladies and Gentlemen of the jury, you have
found in favor of the plaintiff and granted him/
her actual damages, and you have also found
by a separate verdict that the defendant has
(recklessly disregarded its duty to deal fairly
and act in good faith with its insured, [Plaintiff) (and/or) (intentionally and with malice
breached its duty to deal fairly and act in
good faith with its insured, [Plaintiff]).
Employment Based Discrimination Damages
You may now, in addition to actual damages,
grant the plaintiff punitive damages in such
sum as you reasonably believe will punish
defendant and be an example to others.
If you find in favor of [Plaintiff] on the issue
of liability, then you must determine the amount
of backpay to award [Plaintiff] on account of
the [specify adverse employment action]. The
amount of backpay is equal to the [additional]
wages and fringe benefits [Plaintiff] would
have earned if [specify adverse employment
Punitive damages are not to be considered as
compensation to [Plaintiff], but as punishment
to [Defendant], and as an example to others to
deter them from like conduct. The law does not
require you to award punitive damages, and if
you do so, you must use sound reason in setting the amount. You should be aware that the
Instruction No. 21.23
Vol. 85 — No. 12 — 4/19/2014
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865
purpose of punitive damages is to punish and
not to destroy a defendant.
[You may consider evidence of actual harm
to others in determining the seriousness of
the hazard to the public, and thus whether
the conduct that harmed the plaintiff was particularly reprehensible or bad. Conduct that
risks harm to many may be more reprehensible than conduct that risks harm to only a
few. However, you may not use punitive damages to punish [Defendant] directly on account
of harms that [Defendant] may have caused to
others.]
In determining the amount of punitive damages, you may consider the following factors:
1. The seriousness of the hazard to the public
arising from [Defendant]’s misconduct;
2. The profitability of the misconduct to
[Defendant];
3. How long the conduct lasted and whether
it is likely to continue;
4. Whether there were attempts to conceal
the misconduct;
5. How aware [Defendant] was of the conduct and its consequences and how aware
[Defendant] was of the hazard and of its excessiveness;
6. The attitude and conduct of [Defendant]
upon finding out about the misconduct/hazard;
7. The financial condition of [Defendant];
8. (If the defendant is a corporation or
other entity) The number and level of employees involved in causing or concealing the misconduct.
In no event should the punitive damages
exceed the greater of: (Select One) [$100,000.00
or the amount of actual damages you have
previously awarded].
OR
[$500,000.00, or twice the amount of actual
damages you have previously awarded, or the
increased financial benefit derived by the
defendant as a direct result of the conduct
causing the injury to the plaintiff and other
persons or entities].
866
Notes on Use
This instruction is based on Okla. Stat.
Tit. 23, § 9.1 (C)(2) (2011). The Verdict
Forms in Instruction Nos. 5.10 and 5.11,
supra, should accompany this Instruction.
For further discussion, see the Notes on use
to Instruction 5.9, supra.
The last paragraph of this instruction is
to be determined as follows:
If the defendant has been found guilty of
acting with reckless disregard for its duty
to deal fairly and act in good faith with its
insured, then the punitive damages award
should not exceed the greater of $100,000.00
or the amount of actual damages. If the
defendant has been found guilty of acting
intentionally and with malice breached its
duty to deal fairly and to act in good faith
with its insured, the award should not
exceed the greater of $500,000.00, or twice
the amount of actual damages awarded, or
the increased financial benefit derived by
the defendant as a direct result of the conduct causing the injury to the plaintiff and
other persons or entities. If the punitive
damages award is higher than the greater
of $500,000.00 or twice the amount of actual damages, the trial judge is required to
reduce that portion of the punitive damages award that exceeds the greater of
$500,000.00 or twice the amount of actual
damages by the amount the defendant has
previously paid for punitive damages
awarded in Oklahoma state court actions
for the same conduct. Okla. Stat. Tit. 23, §
9.1 [23 - 9.1] (C)(2) (Supp. 1995 2009).
If the trial court has found beyond a reasonable doubt that the defendant acted
intentionally and with malice and engaged
in conduct that was life-threatening to
humans, and also the jury has found that
the defendant acted intentionally and with
malice breached its duty to deal fairly and
act in good faith towards its insured, there
is no limit on the amount of punitive damages and the last paragraph of this instruction should be omitted.
Instruction No. 28.1
Defamation - Introductory Instruction
This is an action to recover damages for defamation. [Plaintiff] claims that [specify the
facts that the plaintiff alleges constituted the
defamation: e.g., [Defendant] published a
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Vol. 85 — No. 12 — 4/19/2014
newspaper article falsely accusing [Plaintiff]
of being a thief.] Specifically, [Plaintiff] claims
that the following statements were defamatory:
[set out statements].
Notes on Use
This Instruction should be used to Introduce the remaining Instructions on defamation in this Chapter.
Instruction No. 28.2
Defamation - Elements (Public Figure
Plaintiff)
In order to recover for defamation, [Plaintiff]
has the burden of proving the following five
elements by the greater weight of the evidence:
1. The statement exposed [Plaintiff] to public
hatred, contempt, ridicule or disgrace;
2. [Defendant] communicated the statement
to (a person)/persons) other than [Plaintiff];
3. (That person)/(Those persons) reasonably
understood the statement to be about [Plaintiff];
4. The statement was false; however, minor
inaccuracies do not amount to falsity if the
statement is substantially true; and,
5. The statement caused [Plaintiff] to suffer
(a financial loss)/(damage to Plaintiff’s reputation and/or emotional injury).
In addition, [Plaintiff] must prove by clear
and convincing evidence that:
6. [Defendant] either knew the statement
was false or had serious doubt whether the
statement was true or false.
Notes on Use
This Instruction should be used in cases
where the plaintiff is either a public official
or a public figure.
Comments
Libel is defined in 12 O.S. 2011 § 1441 as
follows:
Libel is a false or malicious unprivileged publication by writing, printing,
picture, or effigy or other fixed representation to the eye, which exposes any person to public hatred, contempt, ridicule
or obloquy, or which tends to deprive
him of public confidence, or to injure him
Vol. 85 — No. 12 — 4/19/2014
in his occupation, or any malicious publication as aforesaid, designed to blacken
or vilify the memory of one who is dead,
and tending to scandalize his surviving
relatives or friends.
If plaintiff alleges that the statement
caused injury to the plaintiff’s occupation
or any of the other alternatives in § 1441
besides exposing the plaintiff to public
hatred, etc., those alternatives should be
substituted for exposing the plaintiff to
public hatred, etc. in the first element of
this Instruction.
The second element sets out the requirement for publication. For discussions of the
publication requirement, see Magnolia Petroleum Co. v. Davidson, 1944 OK 182, ¶ 31, 148
P.2d 468, 471; Starr v. Pearl Vision, Inc., 54
F.3d 1548, 1552-53 (10th Cir. 1995). The third
element is the “of or concerning” requirement, which connects the defamatory statement to the plaintiff. See McCullough v. Cities
Service Co., 1984 OK 1, ¶ 20, 676 P.2d 833,
836; Miskovsky v. Tulsa Tribune Co., 1983 OK
73, ¶ 24, 678 P.2d 242, 248.
The fourth element is included because §
1441 appears to make the issue of falsity a
part of the plaintiff’s case. The United
States Supreme Court has stated that a
public figure plaintiff has the burden of
proof on the issue of falsity in a defamation
case. Philadelphia Newspapers, Inc. v. Hepps,
475 U.S. 767, 775, 776-77 (1986) (also holding that a private figure plaintiff has the
burden of proof on the issue of the falsity
of a media defendant’s speech on a matter
of public concern).
Statements which cannot be proven
“true” or “false,” because they are opinions
or conclusions based on a review of the
individual’s actions are privileged. Magnusson v. New York Times Co., 2004 OK 53, ¶
13, 98 P.3d 1070, 1076. The trial judge
should determine whether a statement is
one of fact or an opinion. Id.
Whether special damages (i.e., a financial
loss) are required in the fifth element
depends on whether the defamation is libel
per se or libel per quod. If the defamatory
statement is libel per quod, the court should
use “a financial loss” in the fifth element,
and it should use “damages to [Plaintiff]’s
reputation if the defamatory statement is
libel per se. Defamation is libel per se,
The Oklahoma Bar Journal
867
“’when the language used therein is susceptible of but one meaning, and that an
opprobrious one, and the publication on its
face shows that the derogatory statements,
taken as a whole, refer to the plaintiff.’ Fite
v. Oklahoma Pub. Co., 146 Okla. 150, 293 P.
1073 (1930) (syllabus by the court).” Sturgeon v. Retherford Publications, Inc., 1999 OK
CIV APP 78, ¶ 11, 987 P.2d 1218, 1223. In
contrast, libel per quod requires extrinsic
proof of the defamatory meaning. Id.
Whether libel is per se or per quod is a matter
of law, unless a fact issue must be determined. Gaylord Entertainment Co. v. Thompson, 1998 OK 30, ¶ 35, 958 P.2d 128, 147;
Brock v. Thompson, 1997 OK 127, ¶ 27, 948
P.2d 279, 292.
Slander is defined in 12 O.S.2011, § 1442
as follows:
Slander is a false and unprivileged
publication, other than libel, which:
1. Charges any person with crime, or
with having been indicted, convicted or
punished for crime.
2. Imputes to him the present existence
of an infectious, contagious or loathsome
disease.
3. Tends directly to injury him in
respect to his office, profession, trade or
business, either by imputing to him general disqualification in those respects
which the office or other occupation
peculiarly requires, or by imputing something with reference to his office, profession, trade or business that has a natural
tendency to lessen its profit.
4. Imputes to him impotence or want
of chastity; or,
5. Which, by natural consequences,
causes actual damage.
Special damages are not required for
slander per se, meaning that the slander
comes within the first four alternatives in §
1442. Mitchell v. Griffin Television, L.L.C.,
2002 OK CIV APP 115, ¶ 5, 60 P.3d 1058,
1061. Accordingly, if the defamatory statement is per quod, the court should use “a
financial loss” in the sixth element, and it
should use “damages to [Plaintiff]’s reputation” if the defamatory statement is slander per se. Emotional distress is not a form
of special damages for slander per quod.
868
Zeran v. Diamond Broadcasting, Inc., 203 F.3d
714, 718 (10th Cir. 2000) (applying Oklahoma law).
The last element involving the proof of
the defendant’s fault by clear and convincing evidence is needed because of the line
of United States Supreme Court decisions
beginning with New York Times v. Sullivan,
376 U.S. 2454 (1964). The Supreme Court
held in the New York Times case that the
First Amendment “prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement
was made with ‘actual malice’ - that is,
with knowledge that it was false or with
reckless disregard of whether it was false
or not.” Id. at 280-81: Miskovsky v. Oklahoma
Publishing Co., 1982 OK 8, ¶ 11, 654 P.2d
587, 590. The requirement that the defendant made the statement with “reckless
disregard” of its truth means that the defendant must have entertained serious doubt
as to its truth. St. Amant v. Thompson, 390
U.S. 727, 731 (1968); Miskovsky v. Oklahoma
Publishing Co., 1982 OK 8, ¶ 15, 654 P.2d
587, 591. The Supreme Court requires
“actual malice” to be proved by clear and
convincing evidence. Bose Corp. v. Consumers Union, 466 U.S. 485, 513 (1984); Herbert
v. Oklahoma Christian Coalition, 1999 OK 90,
¶ 17, 992 P.2d 322, 328. The United States
Supreme Court has not resolved, however,
whether falsity may be shown by a preponderance of the evidence or must be shown
by clear and convincing evidence instead.
Harte-Hanks Communications Inc. v. Connaughton, 491 U.S. 657, 661 n.2 (1989).
Instruction No. 28.3
Defamation - Elements (Private Figure
Plaintiff)
In order to recover for defamation, [Plaintiff]
has the burden of proving the following five
elements by the greater weight of the evidence:
1. The statement exposed [Plaintiff] to public
hatred, contempt, ridicule or disgrace;
2. [Defendant] communicated the statement
to (a person)/persons) other than [Plaintiff];
3. (That person)/(Those persons) reasonably
understood the statement to be about [Plaintiff];
The Oklahoma Bar Journal
Vol. 85 — No. 12 — 4/19/2014
4. The statement was false; however, minor
inaccuracies do not amount to falsity if the
statement is substantially true; and,
5. [Defendant] did not exercise the care
which a reasonably careful person would use
under the circumstances to determine whether
the statement was true or false; and,
6. The statement caused [Plaintiff] to suffer
(a financial loss)/(damage to Plaintiff’s reputation and/or emotional injury).
Notes on Use
This Instruction should be used in cases
where the plaintiff is a private figure.
Comments
The United States Supreme Court decided in Gertz v. Robert Welch, Inc., 418 U.S. 323
(1974), that “so long as they do not impose
liability without fault, the States may define
for themselves the appropriate standard of
liability for a publisher or broadcaster of
defamatory falsehood injurious to a private
individual.” Id. at 346-47. Soon after the
Gertz decision, the Oklahoma Supreme
Court adopted the negligence standard “as
a reasonable balance between the right of
the news media and the right of the private
individual.” Martin v. Griffin Television, Inc.,
1976 OK 13 ¶ 23, 549 P.2d 85, 92. The fifth
element in this Instruction reflects the negligence standard for defamation.
While both Gertz and Martin were concerned with news media defendants, the
Oklahoma Court of Civil Appeals has
applied the negligence standard to defendants that were not news media. Trice v.
Burgess, 2006 OK CIV APP 79, ¶ 3, 137 P.3d
1253, 1255-56; Bird Constr. Co., Inc. v. Oklahoma City Housing Auth., 2005 OK CIV APP
169, ¶ 7, 110 P.3d 560, 564; Tanique, Inc. v.
State ex rel. Oklahoma Bureau of Narcotics &
Dangerous Drugs, 2004 OK CIV APP 73, ¶¶
29-30, 99 P.3d 1209, 1217. In Trice v. Burgess,
supra, for example, a former youth director
at a church brought a defamation action
against the church and a minister alleging
that the minister had told persons in the
church and the community that the plaintiff “was terminated from his job because
he was questioning his sexuality.” 2006 OK
CIV APP 79, at ¶ 3, 137 P.3d 1253, at 125556. The Court of Civil Appeals set out the
elements for defamation as follows:
Vol. 85 — No. 12 — 4/19/2014
In order to recover for defamation, a private figure must prove (1) a false and
defamatory statement, (2) an unprivileged publication to a third party, (3) fault
amounting at least to negligence on the part
of the publisher; and (4) either the actionability of the statement irrespective of
special damage, or the existence of special
damage caused by the publication.”
2006 OK CIV APP 79, at ¶ 10, 137 P.3d 1253,
at 1257 (quoting from Mitchell v. Griffin
Television, L.L.C., 2002 OK CIV APP 115, ¶
5, 60 P.3d 1058, 1061) (emphasis added). In
Bird Constr. Co. v. Oklahoma City Housing
Auth., supra, the defamation claim arose
out of a letter that the defendant housing
authority sent to the plaintiff’s bonding
company complaining about the plaintiff
construction company’s performance on a
housing project. The Court of Civil Appeals
set out the elements for libel as follows:
Libel is a form of defamation, which
requires “(a) a false and defamatory statement concerning another, (b) an unprivileged publication to a third party, (c) fault
amounting at least to negligence on the
part of the publisher, and (d) either actionability of the statement irrespective of
special harm or the existence of special
harm caused by the publication.”
Bird Constr. Co., Inc. v. Oklahoma Housing
Auth., 2005 OK CIV APP 169, ¶ 7, 110 P.3d
560, 564 (quoting from RESTATEMENT
(SECOND) OF TORTS § 558 (1977)).
Statements which cannot be proven
“true” or “false,” because they are opinions
or conclusions based on a review of the
individual’s actions are privileged. Magnusson v. New York Times Co., 2004 OK 53,
¶13, 98 P.3d 1070, 1076. The trial judge
should determine whether a statement is
one of fact or an opinion. Id.
Gertz also held that “the States may not
permit recovery of presumed or punitive
damages, at least when liability is not
based on a showing of knowledge of falsity
or reckless disregard for the truth.” 418
U.S. at 349. Later in Dunn & Bradstreet, Inc.
v. Greenmoss Builders, Inc., 472 U.S. 749, 763
(1985), the United States Supreme Court
held that this limitation was not applicable
when the defamatory statements did not
involve matters of public concern. Punitive
damages are not available in Oklahoma
The Oklahoma Bar Journal
869
unless a defendant acted either with reckless disregard of the rights of others or
intentionally and with malice. See 23
O.S.2011, § 9.1. Thus, punitive damages
would not be available for defamation
based on a negligence standard. In Martin,
the Oklahoma Supreme Court decided that
the prior Oklahoma statute that authorized
presumed damages for defamation, 12 O.S. §
1446 (repealed 1986), was unconstitutional
under Gertz. Accordingly, it appears that
the actual malice standard would not be
applicable to defamation cases in Oklahoma brought by private figure plaintiffs.
If plaintiff alleges that the statement
caused injury to the plaintiff’s occupation
or any of the other alternatives in § 1441
besides exposing the plaintiff to public
hatred, etc., those alternatives should be
substituted for exposing the plaintiff to
public hatred, etc. in the first element of
this Instruction.
The second element sets out the requirement for publication. For discussions of the
publication requirement, see Magnolia Petroleum Co. v. Davidson, 1944 OK 182, ¶ 31, 148
P.2d 468, 471; Starr v. Pearl Vision, Inc., 54
F.3d 1548, 1552-53 (10th Cir. 1995). The third
element is the “of or concerning” requirement, which connects the defamatory statement to the plaintiff. See McCullough v. Cities
Service Co., 1984 OK 1, ¶ 20, 676 P.2d 833,
836; Miskovsky v. Tulsa Tribune Co., 1983 OK
73, ¶ 24, 678 P.2d 242, 248.
The fourth element is included because
§ 1441 appears to make the issue of falsity
a part of the plaintiff’s case. The United
States Supreme Court has stated that a
public figure plaintiff has the burden of
proof on the issue of falsity in a defamation
case. Philadelphia Newspapers, Inc. v. Hepps,
475 U.S. 767, 775, 776-77 (1986) (also holding that a private figure plaintiff has the
burden of proof on the issue of the falsity
of a media defendant’s speech on a matter
of public concern).
Statements which cannot be proven
“true” or “false,” because they are opinions
or conclusions based on a review of the
individual’s actions are privileged. Magnusson v. New York Times Co., 2004 OK 53, ¶
13, 98 P.3d 1070, 1076. The trial judge
should determine whether a statement is
one of fact or an opinion. Id.
870
Whether special damages (i.e., a financial loss) are required in the fifth element
depends on whether the defamation is libel
per se or libel per quod. If the defamatory
statement is libel per quod, the court should
use “a financial loss” in the fifth element,
and it should use “damages to [Plaintiff]’s
reputation if the defamatory statement is
libel per se. Defamation is libel per se,
“’when the language used therein is susceptible of but one meaning, and that an
opprobrious one, and the publication on its
face shows that the derogatory statements,
taken as a whole, refer to the plaintiff.’ Fite
v. Oklahoma Pub. Co., 146 Okla. 150, 293 P.
1073 (1930) (syllabus by the court).” Sturgeon v. Retherford Publications, Inc., 1999 OK
CIV APP 78, ¶ 11, 987 P.2d 1218, 1223. In
contrast, libel per quod requires extrinsic
proof of the defamatory meaning. Id.
Whether libel is per se or per quod is a matter
of law, unless a fact issue must be determined. Gaylord Entertainment Co. v. Thompson, 1998 OK 30, ¶ 35, 958 P.2d 128, 147;
Brock v. Thompson, 1997 OK 127, ¶ 27, 948
P.2d 279, 292.
Slander is defined in 12 O.S.2011, § 1442
as follows:
Slander is a false and unprivileged
publication, other than libel, which:
1. Charges any person with crime, or
with having been indicted, convicted or
punished for crime.
2. Imputes to him the present existence
of an infectious, contagious or loathsome
disease.
3. Tends directly to injury him in
respect to his office, profession, trade or
business, either by imputing to him general disqualification in those respects
which the office or other occupation
peculiarly requires, or by imputing something with reference to his office, profession, trade or business that has a natural
tendency to lessen its profit.
4. Imputes to him impotence or want
of chastity; or,
5. Which, by natural consequences,
causes actual damage.
Special damages are not required for
slander per se, meaning that the slander
comes within the first four alternatives in §
The Oklahoma Bar Journal
Vol. 85 — No. 12 — 4/19/2014
1442. Mitchell v. Griffin Television, L.L.C.,
2002 OK CIV APP 115, ¶ 5, 60 P.3d 1058,
1061. Accordingly, if the defamatory statement is per quod, the court should use “a
financial loss” in the sixth element, and it
should use “damages to [Plaintiff]’s reputation” if the defamatory statement is slander per se. Emotional distress is not a form
of special damages for slander per quod.
Zeran v. Diamond Broadcasting, Inc., 203 F.3d
714, 718 (10th Cir. 2000) (applying Oklahoma law).
statement is a fair comment if it meets the following four requirements:
The last element involving the proof of
the defendant’s fault by clear and convincing evidence is needed because of the line
of United States Supreme Court decisions
beginning with New York Times v. Sullivan,
376 U.S. 2454 (1964). The Supreme Court
held in the New York Times case that the
First Amendment “prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement
was made with ‘actual malice’ — that is,
with knowledge that it was false or with
reckless disregard of whether it was false
or not.” Id. at 280-81: Miskovsky v. Oklahoma
Publishing Co., 1982 OK 8, ¶ 11, 654 P.2d
587, 590. The requirement that the defendant made the statement with “reckless
disregard” of its truth means that the defendant must have entertained serious doubt
as to its truth. St. Amant v. Thompson, 390
U.S. 727, 731 (1968); Miskovsky v. Oklahoma
Publishing Co., 1982 OK 8, ¶ 15, 654 P.2d
587, 591. The Supreme Court requires
“actual malice” to be proved by clear and
convincing evidence. Bose Corp. v. Consumers Union, 466 U.S. 485, 513 (1984); Herbert
v. Oklahoma Christian Coalition, 1999 OK 90,
¶ 17, 992 P.2d 322, 328. The United States
Supreme Court has not resolved, however,
whether falsity may be shown by a preponderance of the evidence or must be shown
by clear and convincing evidence instead.
Harte-Hanks Communications Inc. v. Connaughton, 491 U.S. 657, 661 n.2 (1989).
To decide whether the statement was a fair
comment, you should consider the following:
Instruction No. 28.4
Defamation - Affirmative Defense of Fair
Comment
[Defendant] has raised the defense in this
case that the alleged defamatory statement is
privileged because it was a fair comment. A
Vol. 85 — No. 12 — 4/19/2014
1. The statement dealt with a matter of public
concern;
2. The statement was based on true or privileged facts;
3. The statement was the actual opinion of
the person who made it; and
4. The person did not make the statement
only for the purpose of causing harm.
1. The way the statement was phrased;
2. The context in which the statement
appeared;
3. The medium in which the statement was
distributed;
4. The circumstances surrounding the statement’s publication; and
5. Whether the statement implied the existence of undisclosed facts.
Comments
In Magnussan v. New York Times, 2004 OK
53, ¶¶ 8, 23, 98 P.3d 1070, 1074, 1079, the
Oklahoma Supreme Court recognized the
common law fair comment privilege in
Oklahoma and held that it was available as
a defense against private individuals as
well as public figures. The Oklahoma
Supreme Court delineated the elements of
the privilege as follows:
Under the common law defense of fair
comment, a statement is generally privileged when it: 1) deals with a matter of
public concern; 2) is based on true or
privileged facts; and 3) represents the
actual opinion of the speaker, but is not
made for the sole purpose of causing
harm. In making the privilege determination, courts look to the phrasing of the
statement, the context in which it appears,
the medium through which it is disseminated, the circumstances surrounding its
publication, and a consideration of whether the statement implies the existence of
undisclosed facts.
Id. ¶ 11, 98 P.3d at 1075 (footnote omitted).
The Oklahoma Bar Journal
871
Instruction No. 28.5
Instruction No. 28.6
Defamation - Affirmative Defense of Fair
Reporting
Defamation - Affirmative Defense of Good
Faith
[Defendant] has raised the defense in this
case that the alleged defamatory statement is
privileged because it was a fair report. A statement is a fair report if:
[Defendant] has raised the defense in this
case that the alleged defamatory article is
privileged because it was published in good
faith in a newspaper/periodical. An article is
privileged under this defense if it was published in good faith and its falsity was due to
an honest mistake.
The statement was a fair and true report of a
(legislative/judicial proceeding)/(proceeding
authorized by law);
OR
The statement was (an expression of opinion)/(a criticism) of a (legislative/judicial proceeding)/(proceeding authorized by law);
OR
The statement was a criticism upon an official act of a public officer that did not falsely
impute crime to the officer.
Comments
12 O.S.2011, § 1443.1 provides:
A. A privileged publication or communication is one made: First, In any legislative or judicial proceeding or any other
proceeding authorized by law;
Second. In the proper discharge of an
official duty.
Third. By a fair and true report of any
legislative or judicial or other proceeding
authorized by law, or anything said in
the course thereof, and any and all expressions of opinion in regard thereto, and
criticisms thereon, and any and all criticisms upon the official acts of any and al
public officers, except where the matter
stated of and concerning the official act
done, or of the officer, falsely imputes
crime to the officer so criticized.
B. No publication which under this section would be privileged shall be punishable as libel.
In Gaylord Entertainment Co. v. Thompson,
1998 OK 30, ¶ 29, 958 P.2d 128, 145. The
Oklahoma Supreme Court, ruled that a
defendant had the burden of asserting and
proving the fair report and fair comment
privileges as affirmative defenses.
872
If you determine that the article was published in good faith and its falsity was due to
an honest mistake, Plaintiff [name] shall be
entitled to recover only financial losses, such as
loss of earnings/profits, [unless Plaintiff
requested a retraction and Defendant [name]
refused to publish the retraction].
Notes on Use
The last clause of this Instruction, referring to a retraction should be given if there
is evidence presented at trial that a retraction was requested and refused.
Comments
12 O.S. 2011 § 1446a provides:
In an action for damages for the publication of a libel in a newspaper or periodical, if the evidence shows that the article
was published in good faith and that its
falsity was due to an honest mistake of
the facts, and the question of “honest
mistake” shall be a question of fact to be
determined by a jury, unless a jury be
waived by the parties, the plaintiff shall
be entitled to recover actual damages
only unless a retraction be requested and
refused as hereinafter provided. The person claiming to have been libeled shall
notify the publisher, either orally or in
writing, stating or setting forth the particular matter claimed to be libelous and
requesting that the same be retracted. If a
retraction, headed “RETRACTION” in
eighteen point type or larger, be published on the same page and in the same
type as were the statements complained
of, in two regular issues of said newspaper or periodical, published within a
reasonable time, but not to exceed two (2)
weeks after such notice in a weekly
newspaper, or not to exceed one (1) week
in a daily newspaper, the publication of
said retraction shall be full and complete
The Oklahoma Bar Journal
Vol. 85 — No. 12 — 4/19/2014
satisfaction as to all other than actual
damages, and the plaintiff shall not be
entitled to recover other than actual damages on account of such erroneous published matter. If such a retraction be not
so published, plaintiff may recover such
damages as are provided by the statutes
of this state, if his cause of action be
maintained. This section shall not apply
to any libel imputing unchastity to a
woman; nor in any case in which the evidence shows the publication was made
maliciously, or with a premeditated intention and purpose to injure, defame or
destroy the reputation of another or to
injuriously alter a person’s reputation;
nor to anonymous communications or
publications, and provided further that
this section shall not apply to any article
pertaining to any candidate for any public office when said article is published
within three (3) weeks of the date of the
primary, runoff primary, special or general election, as the case may be.
Instruction No. 28.7
Defamation - Affirmative Defense For
Statement Made by Another Person
[Defendant] has raised the defense in this
case that the alleged defamatory article is
privileged because it was a statement made by
another person. A statement is privileged under
this defense if the following requirements are
met:
1. Defendant is [an agent /employee of] a/an
owner/licensee/operator of a (television/radio
broadcasting station)/(network of television/
radio broadcasting stations);
2. The statement was published/uttered in/
(as a part of) a television/radio broadcast;
3. By a person other than [an agent /employee] the Defendant; and
4. Defendant did not fail to exercise due care
to prevent the publication/utterance of the
statement.
Comments
12 O.S.2011, § 1447.1 provides:
The owner, licensee or operator of a television and/or radio broadcasting station
or network of stations, and the agents or
employees of any such owner, licensee or
operator, shall not be liable for any damVol. 85 — No. 12 — 4/19/2014
ages for any defamatory statement published or uttered in or as a part of a television and/or radio broadcast, by one other
than such owner, licensee or operator, or
agent or employee thereof, unless it shall
be alleged and proved by the complaining
party, that such owner, licensee, operator
or such agent or employee, has failed to
exercise due care to prevent the publication or utterance of such statement in
such broadcast.
Instruction No. 28.8
Defamation - Affirmative Defense of
Qualified Privilege
[Defendant] has raised the defense in this
case that the alleged defamatory article is
privileged. A statement is privileged under this
defense if [Defendant] reasonably believed:
1. The statement gave information that affected an important interest of [Identify person to
whom statement was made]; and,
2. It was within generally accepted standards
of decent conduct for [Defendant] to make the
statement.
An important factor in favor of a finding that
it was within generally accepted standards of
decent conduct for [Defendant] to make the
statement is that:
[Defendant] made the statement in response
to a request, rather than volunteering it.
OR
[Defendant] and [Identify person to whom
statement was made] were [Specify relationship between them].
This defense is not available if [Defendant]
either knew the statement was false or had
serious doubt whether the statement was true
or false.
Notes on Use
The trial court should select whichever
of the alternative factors is appropriate that
supports a finding that it was within generally accepted standards of decent conduct
for the defendant to have made the allegedly defamatory statement. The trial court
should not include the last sentence of the
Instruction unless evidence has been presented of either the defendant’s knowledge
of the statement’s falsity or that the defen-
The Oklahoma Bar Journal
873
dant had serious doubt whether the statement was true or false.
Comments
The Oklahoma Supreme Court has recognized qualified privileges based upon
statute as well as upon common law. See
Wright v. Haas, 1978 OK 109, ¶ 6, 586 P.2d
1093, 1096-97. In Fawcett Publications, Inc. v.
Morris, 1962 OK 183, ¶ 54, 377 P.2d 42, 52,
the Oklahoma Supreme Court stated that
as a general rule a qualified privilege has
been applied in cases where “some special
private relationship has been involved, such
as fraternal, fiduciary, business, or professional.” See also Thornton v. Holdenville General Hosp., 2001 OK CIV APP 133, ¶ 16, 36
P.3d 456, 461 (“A conditional privilege
attaches to statements, which would ordinarily be defamatory, made in good faith on
a subject in which the speaker has an interest
or in reference to which he has or honestly
believes he has a duty to perform.”).
This Instruction is based upon RESTATEMENT (SECOND) OF TORTS § 595 (1977),
which states:
(1) An occasion makes a publication
conditionally privileged if the circumstances induce a correct or reasonable
belief that
(a) there is information that affects a
sufficiently important interest of the
recipient or a third person, and
(b) the recipient is one to whom the
publisher is under a legal duty to publish
the defamatory matter or is a person to
whom its publication is otherwise within
the generally accepted standards of
decent conduct.
(2) In determining whether a publication is within generally accepted standards of decent conduct it is an important factor that
(a) the publication is made in response
to a request rather than volunteered by
the publisher or
(b) a family or other relationship exists
between the parties.
Examples of circumstances where this
qualified privilege may apply include
statements concerning a former employee by a former employer to a prospective
874
employer, reports to police officers, statements by a credit rating agency to a subscriber, communications between members of a trade association, and communications between family members. See
RESTATEMENT (SECOND) OF TORTS §
595 (1977) comments g, h, i, and j. A conditional privilege may also be recognized
where a statement is made that concerns
an interest of the maker of the statement,
a common interest between the maker of
the statement and its recipient, a member
of the family of the maker of the statement, or a public interest. See RESTATEMENT (SECOND) OF TORTS §§ 594,
596-598 (1977). See also Trice v. Burress,
2006 OK CIV APP 79, ¶ 15, 137 P.3d 1253,
1258-59 (recognizing qualified privilege
for communications between church
members concerning conduct of other
church members).
In Wright v. Haas, 1978 OK 109, ¶ 8, 586
P.2d 1093, 1097, the Oklahoma Supreme
Court held that a qualified privilege is
lost if it is abused as a result of the maker
of the statement having knowledge of its
falsity or acting in reckless disregard of
its truth or falsity. The Oklahoma Supreme
Court recognized that the standard for
loss of a qualified privilege is the same as
the requirement of actual malice for a
public figure plaintiff. Accordingly, it
held that a conditional privilege was not
available as a defense for a public defamation plaintiff. Id. ¶ 9, 586 P.2d at 1097.
Instruction No. 28.9
Defamation - Measure of Damages
If you decide for Plaintiff [name], you must
then fix the amount of his/her damages. This is
the amount of money that will reasonably and
fairly compensate him/her for the injury sustained as a result of the defamation by Defendant [name].
In fixing the amount you will award him/her
you may consider the following elements:
1. Financial losses, such as loss of earnings/
profits;
2. Injury to reputation and standing in the
community;
3. Personal humiliation;
4. Mental anguish and suffering.
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Vol. 85 — No. 12 — 4/19/2014
Comments
The Oklahoma Supreme Court held in
Martin v. Griffin Television, Inc., 1976 OK 13,
¶ 26, 549 P.2d 85, 93, that allowable damages for defamation are not limited to outof-pocket losses, but may also include
impairment of reputation and standing in
the community, personal humiliation, and
mental anguish and suffering.
1. The information derives independent economic value from not being generally known;
2. The information is not readily ascertainable, through proper means, by other persons
who can obtain economic value from its disclosure or use; and
3. The information is the subject of reasonable efforts to maintain its secrecy.
Notes on Use
Instruction No. 29.1
Misappropriation of Trade Secrets —
Elements
Plaintiff [name] claims that Defendant [name]
has misappropriated trade secrets from Plaintiff by [specify the trade secrets and how
Defendant misappropriated them]. In order to
recover on the claim for misappropriation of
trade secrets, Plaintiff has the burden of proving the following elements by the greater
weight of the evidence:
1. Plaintiff [name] was the owner of trade
secrets;
2. Defendant [name] misappropriated the
trade secrets;
3. The misappropriation of the trade secrets
was the direct cause of damages to Plaintiff.
Comments
The law of trade secrets in Oklahoma is
governed by the Uniform Trade Secrets
Act, 78 O.S. 2011 §§ 85-94. In Micro Consulting, Inc. v. Zubeldia, 813 F. Supp. 1514, 1534
(W.D. Okla. 1990), the United States District Court for the Western District of Oklahoma listed the elements of a trade secrets
claim as: “(1) the existence of a trade secret;
(2) misappropriation of this secret by the
defendants; and (3) use of the secret by the
defendants to the detriment of the plaintiff.” The standard announced in Micro
Consulting, Inc. was noted by the Oklahoma
Court of Civil Appeals in MTG Guarnieri
Mfg., Inc. v. Clouatre, 2010 OK CIV APP 71,
¶ 12, n.14, 239 P.3d 202, 209.
Comments
78 O.S. 2011 § 86(4) defines a trade secret as
follows:
“Trade secret” means information including a formula, pattern, compilation, program, device, method, technique or process, that:
a. derives independent economic value,
actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons
who can obtain economic value from its
disclosure or use, and
b. is the subject of efforts that are reasonable under the circumstances to maintain
its secrecy.
Instruction No. 29.3
Misappropriation — Definition
“Misappropriation” means:
1. Acquisition of another person’s trade secret
by a person who knows or has reason to know
that the trade secret was acquired by improper
means;
OR
2. Disclosure or use of a trade secret that
belongs to another person, without express or
implied consent, by a person who:
(A) Used improper means to acquire knowledge of the trade secret;
Instruction No. 29.2
Trade Secret — Definition
A “trade secret” is information, such as a
formula/pattern/compilation/program/
device/method/technique/process, that meets
the following thee requirements:
Vol. 85 — No. 12 — 4/19/2014
The trial court should select the appropriate
alternative(s) in the definition based upon the
evidence presented at trial.
OR
(B) At the time of disclosure or use, knew or
had reason to know that the person’s knowledge of the trade secret was:
The Oklahoma Bar Journal
875
(i) derived from or through a person who
had utilized improper means to acquire it;
OR
(ii) acquired under circumstances giving rise
to a duty to maintain its secrecy or limit its
use;
OR
(iii) derived from or through a person who
owed a duty to Plaintiff [name] to maintain its
secrecy or limit its use;
OR
(C) Acquired the information by accident or
mistake, and before a material change of the
person’s position, knew or had reason to know
that is was a trade secret.
Notes on Use
The trial court should select the appropriate
alternative(s) in the definition based on the
evidence presented at trial.
Comments
78 O.S. 2011 § 86(2) defines misappropriation as follows:
“Misappropriation” means:
a. acquisition of a trade secret of another by
a person who knows or has reason to know
that the trade secret was acquired by
improper means; or
b. disclosure or use of a trade secret of
another without express or implied consent by a person who:
(1) used improper means to acquire
knowledge of the trade secret; or
(2) at the time of disclosure or use, knew
or had reason to know that his knowledge of the trade secret was:
(a) derived from or through a person
who had utilized improper means to
acquire it; or
(b) acquired under circumstances giving rise to a duty to maintain its secrecy or limit its use; or
(c) derived from or through a person
who owed a duty to the person seeking relief to maintain its secrecy or
limit its use; or
876
(3) before a material change of his position,
knew or had reason to know that it was a
trade secret and that knowledge of it had
been acquired by accident or mistake.
Instruction No. 29.4
Improper Means — Definition
“Improper means” includes theft/bribery/
misrepresentation/(breach of a duty to maintain secrecy) / (inducing another person to
breach a duty to maintain secrecy)/ espionage.
Notes on Use
The trial court should select the appropriate alternative(s) in the definition based
on the evidence presented at trial.
Comments
78 O.S. 2011 § 86(1) defines improper
means as follows: “’Improper means’
includes theft, bribery, misrepresentation,
breach or inducement of a breach of a duty
to maintain secrecy, or espionage through
electronic or other means.”
Instruction No. 29.5
Misappropriation of Trade Secrets —
Measure of Damages
A person who misappropriates trade secrets
is liable for damages to the owner of the trade
secrets. If you decide that Defendant [name]
misappropriated trade secrets from Plaintiff
[name], you must then fix the amount of damages. This is the amount of money that:
1. Would be a reasonable royalty for Defendant’s disclosure/use of the trade secrets;
OR
2. Will reasonably and fairly compensate
Plaintiff for:
A. The actual loss caused by the misappropriation; and
B. The net profit or other benefit that Defendant unjustly received from the misappropriation to the extent that it is not taken into
account in calculating the actual loss to Plaintiff; whichever of 1 or 2 is the greater.
Notes on Use
The trial court should select the appropriate alternative remedy(ies) as supported
by the evidence, and the jury should return
the larger amount on the Verdict Form.
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Vol. 85 — No. 12 — 4/19/2014
Comments
78 O.S. 2011 §88(A) specifies the measure of damages for misappropriation of
trade secret as follows:
Damages can include both the actual loss
caused by misappropriation and the
unjust enrichment caused by misappropriation that is not taken into account in
computing actual loss. In lieu of damages
measured by any other methods, the
damages caused by misappropriation
may be measured by imposition of liability for a reasonable royalty for a misappropriator’s unauthorized disclosure or
use of a trade secret.
The court may also award exemplary damages for a willful and malicious appropriation in an amount not exceeding twice the
amount of compensatory damages under
78 O.S. 2011 § 88(B).
2014 OK 18
IN RE: AMENDMENT TO THE
OKLAHOMA UNIFORM DISTRICT
COURT RULES,
12 O.S. Ch. 2, App.
S.C.A.D. No. 2014-18. March 24, 2014
ORDER ADOPTING AMENDMENT TO
RULES FOR DISTRICT COURTS OF
OKLAHOMA
¶1 The Court has reviewed the recommendation of the Oklahoma Supreme Committee for
Uniform Jury Instructions that the Rules for
District Courts of Oklahoma be amended by
creation of new Rule 32.
¶2 The Court hereby adopts new Rule 32 for
the District Courts, and it is therefore ordered,
adjudged and decreed that new Rule 32, as set
out herein shall be included and codified as
Rule 32 of the Rules for the District Courts of
Oklahoma, 12 O.S.2001, Ch. 2, App., Rule 32.
¶3 New Rule 32 shall be effective sixty (60)
days from the date this Order is filed with the
Clerk of this Court.
¶4 New District Court Rule 32 states as follows:
Rule 32. Juror Questionnaires
When juror questionnaires are used at a
trial, access to the questionnaires by the
parties must be balanced against the juror’s
Vol. 85 — No. 12 — 4/19/2014
right to privacy and to the confidentiality
of the information in the questionnaires.
Copies of the questionnaires shall be made
available only for use during voir dire to
attorneys for the parties and to the trial
court. All copies shall be destroyed at the
conclusion of voir dire. The original questionnaires of all jurors shall be sealed by
the District Court and retained, but not
made part of the public record.
DONE BY ORDER OF THE SUPREME
COURT IN CONFERENCE THE 13TH DAY
OF MARCH, 2014.
/s/ Tom Colbert
CHIEF JUSTICE
Colbert, C.J., Reif, V.C.J., Kauger, Watt, Edmondson, Combs and Gurich, JJ., - concur,
Winchester, J. - concurs in result,
Taylor, J. - concurs in part and dissents in part.
I would adopt all of the recommendations of
the OUJI-CIV committee.
2014 OK 19
IN RE: AMENDMENT TO THE
OKLAHOMA SUPREME COURT RULES,
12 O.S. Ch. 15, App. 1
S.C.A.D. No. 2014-19. March 24, 2014
ORDER ADOPTING AMENDMENT TO
OKLAHOMA SUPREME COURT RULES
¶1 The Court has reviewed the recommendation of the Oklahoma Supreme Committee for
Uniform Jury Instructions that Oklahoma
Supreme Court Rule 1.28 be amended to
include new material designated as paragraph
1.28(l) and codified immediately following
paragraph 1.28(k).
¶2 The Court hereby adopts new paragraph
1.28(l) for Supreme Court Rule 1.28, and it is
therefore ordered, adjudged and decreed that
paragraph 1.28(l), as set out herein shall be included and codified as paragraph 1.28(l) of
Oklahoma Supreme Court Rule 1.28, 12 O.S.201,
Ch. 15, App. 1.
¶3 Paragraph 1.28(l) of Okla. Sup. Ct. R. 1.28
shall be effective sixty (60) days from the date
this Order is filed with the Clerk of this Court.
¶4 New paragraph (l) of Okla Sup. Ct. R. 1.28
shall state as follows:
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877
Okla. Sup. Ct. Rule 1.28(l) Juror Questionnaires
A) If appellate counsel designates the questionnaire of any juror, the Clerk of the District Court shall transmit the sealed original questionnaire(s) to the Clerk of the
Supreme Court along with the rest of the
appellate record. Only the attorneys of
record on appeal may view the juror questionnaires at the office of the Oklahoma
Supreme Court Clerk, and attorneys shall
not remove the juror questionnaires from
the custody of the Court. The attorneys of
record on appeal may contact the Clerk to
schedule a date and time when the questionnaires may be viewed. The sealed juror
questionnaires may not be photocopied or
removed from the Supreme Court Clerk
office.
(B) After an appeal has been decided by
this Court, or the Court has denied A petition for writ of certiorari, the Oklahoma
Supreme Court Clerk shall continue to
retain all questionnaires until the later of
(1) the expiration of time for filing a petition for a writ of certiorari in the United
States Supreme Court; or (2) the issuance of
a notice of final disposition by the United
States Supreme Court. See Okla. Sup. Ct. R.
1.16 and Sup. Ct. R. 45-46. Thereafter, the
Oklahoma Supreme Court Clerk shall
destroy all originals and photocopies of
juror questionnaires.
(C) Briefs and motions shall not refer to
jurors by name, but shall use initials or
juror number instead.
DONE BY ORDER OF THE SUPREME
COURT IN CONFERENCE THE 13TH DAY
OF MARCH, 2014.
/s/ Tom Colbert
CHIEF JUSTICE
Colbert, C.J., Reif, V.C.J., Kauger, Watt, Edmondson, Combs and Gurich, JJ., - concur,
Winchester, J. - concurs in result,
Taylor, J. - concurs in part and dissents in part.
I would adopt all of the recommendations of
the OUJI-CIV committee.
2014 OK 20
STATE OF OKLAHOMA ex rel.
OKLAHOMA BAR ASSOCIATION,
Complainant, v. WILLIAM G. BERNHARDT,
Respondent.
No. SCBD 6001. March 26, 2014
ORDER
I hereby withdraw my dissenting opinion
filed on March 25, 2014, which states: “The
Respondent is a convicted felon. This suspension should be immediately imposed and not
deferred.”
DONE BY ORDER OF THE SUPREME
COURT THIS 26th day of March, 2014.
/s/ Steven Taylor
JUSTICE
2014 OK 22
WALTER HALL, Plaintiff/Appellant, v. THE
GEO GROUP, INC, Defendant/Appellee.
No. 112,222. April 1, 2014
APPEAL FROM THE DISTRICT COURT OF
OKLAHOMA COUNTY
Honorable Bill Graves, Trial Judge
¶0 Walter Hall was allegedly injured while
being transported to a medical appointment by a private prison facility, GEO. Two
years and two months later, he filed a lawsuit against it for negligence. GEO filed a
motion for summary judgment, arguing
that the statute of limitations had expired
and the lawsuit was untimely. Hall insisted
that the limitation period was tolled due to
his injury. The trial court granted GEO’s
motion for summary judgment and Hall
appealed. We hold that pursuant to 57 O.S.
2011 §566.4, compliance with the notice
provisions of the Governmental Tort Claims
Act (GTCA) is required to bring a tort
action against a private correctional facility.
The notice required by the GTCA is a mandatory prerequisite to filing a claim for tort
damages and it is a jurisdictional requirement. Because Hall did not comply with
the GTCA and the notice of claim requirement of the GTCA is only tolled 90 days
due to incapacity from an injury, the cause
must be dismissed as untimely filed.
TRIAL COURT AFFIRMED.
CAUSE DISMISSED.
878
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Vol. 85 — No. 12 — 4/19/2014
Rex Travis, Paul Kouri, Oklahoma City, Oklahoma, for Appellant.
Don G. Pope, Norman, Oklahoma, for Appellee.
KAUGER, J:
¶1 The dispositive issue presented is whether
the plaintiff’s negligence action should be dismissed as untimely brought. We hold that,
pursuant to 57 O.S. 2011 §566.4, compliance
with the notice provisions of the Governmental
Tort Claims Act (GTCA) is required for a prisoner, or former prisoner, to bring a tort action
against a private correctional facility.1 The
notice required by the GTCA is a mandatory
prerequisite jurisdictional requirement2 to filing a claim for tort damages.3 Because Hall did
not comply with the notice requirements and
the notice of claim requirement of the GTCA is
only tolled for 90 days due to incapacity from
an injury, the cause must be dismissed as
untimely filed.4
FACTS
¶2 The Oklahoma Department of Corrections
(DOC) admitted the plaintiff/appellant, Walter
Hall (Hall) as an inmate in April of 2010, after
his convictions for failing to comply with the sex
offender registry and falsely impersonating
another person. While in DOC custody, Hall suffered a head injury from a fall at a hospital while
he was being examined for alleged chest pains.
As a result of the fall, Hall suffered a subdural
hematoma which required surgery. He received
a metal plate surgically implanted over his
brain. After the surgery, he contracted a staphylococcus infection, the metal plate was removed,
and he was confined to a wheelchair.
¶3 On April 28, 2010, DOC transferred Hall
to a private correctional facility owned and
operated by the defendant/appellee, GEO in
Lawton, Oklahoma. On September 7, 2010,
GEO transported Hall in a van to Oklahoma
City for medical treatment. His feet and hands
were shackled, but his wheelchair was not
restrained or secured to the van. When the
driver moved the van abruptly, the wheelchair
toppled over. Hall allegedly injured his shoulder and chest, and he contends that he lost
consciousness and re-injured the hematoma.
¶4 GEO diverted the van to the local emergency room at Southwestern Medical Center
Hospital in Lawton, Oklahoma, where Hall
was examined, treated for a headache, and
Vol. 85 — No. 12 — 4/19/2014
returned to the prison. The emergency room
exam found no signs of visible injury or distress.5 After he returned to the prison, Hall complained of being unable to sleep and having very
bad headaches. At some point later, Hall alleges
that he had surgery on his shoulder and that the
injury to his chest was not timely addressed and
now his chest is deformed. Hall was transferred
to the minimum security facility, John H. Lilley
Correctional Center in Boley, Oklahoma, on February 17, 2011, and released from confinement in
September of 2011.
¶5 On June 18, 2012, Hall filed a lawsuit in
the district court of Oklahoma County, alleging
that the employees of GEO were negligent
when they did not strap his wheelchair in the
van to prevent it from toppling over and injuring him. GEO filed a motion to dismiss on July
10, 2012, arguing that: 1) pursuant to 12 O.S.
2011 §95(11),6 an inmate is required to bring a
claim for injury within one year from the date
the injury occurred; and 2) because the incident
occurred on September 7, 2010, Hall’s opportunity to bring his lawsuit expired on September
7, 2011, nearly a year before he actually filed
the lawsuit.
¶6 Hall responds that: 1) he was under a
legal disability until sometime after he was
released from confinement in 2011, which prevented the running of the statute of limitations
pursuant to 12 O.S. 2011 §96;7 and 2) even if he
were not under such a disability, the one-year
statute of limitations for inmates is an unconstitutional special law8 and which violates the
equal protection clauses of both the state and
federal Constitutions.9
¶7 Neither party noted the application of 57
O.S. 2011 §566.4. It requires compliance with
the notice provisions of the Governmental Tort
Claims Act (GTCA) when a prisoner or former
prisoner brings a tort action against a private
correctional facility.10 On December 3, 2012, the
trial court overruled GEO’s motion to dismiss.11
On May 3, 2103, GEO filed a motion for summary judgment, arguing that the action was
untimely and that administrative remedies
were not properly exhausted.
¶8 Hall responded that: 1) the administrative
remedies provided to inmates were nothing
more than an “offender grievance process”
intended to provide answers to inmate questions, not to provide compensation for medical
bills and pain and suffering; and 2) he was
under a legal disability which tolled the statute
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879
of limitations. Hall also, again, argued that, in
the event the statute of limitation period was
not tolled, the one year limitation period applicable only to inmates was an unconstitutional
special law and it violates equal protection.
¶9 On September 6, 2013, the trial court
granted GEO’s motion for summary judgment
and entered judgment in favor of GEO. Hall
appealed to this Court on October 3, 2013. We
retained the cause on November 13, 2013. On
January 23, 2014, we ordered both parties to
brief simultaneously the applicability of 57
O.S. 2011 §566.4B(2)12 and the briefing was
completed on February 7, 2014.
¶10 PURSUANT TO THE GTCA, 57 O.S.
2011 §566.4, THE NOTICE PROVISIONS OF
THE GTCA APPLY TO TORT ACTIONS
BROUGHT BY PRISONERS AND FORMER
PRISONERS AGAINST PRIVATE
CORRECTIONAL FACILITIES. NOTICE IS
A MANDATORY PREREQUISITE TO
FILING A CLAIM FOR TORT DAMAGES
AND THERE HAS BEEN NO
COMPLIANCE WITH THE GTCA.
BECAUSE NOTICE OF A CLAIM IS ONLY
TOLLED 90 DAYS DUE TO INCAPACITY
FROM INJURY, THE CAUSE MUST BE
DISMISSED AS UNTIMELY FILED.
¶11 Neither party noted the existence or
applicability of 57 O.S. 2011 §566.4 which
applies the notice provisions of the GTCA to
lawsuits brought by prisoners or former prisoners against private correctional facilities.13
GEO contends that it is dispositive of this
cause, but Hall argues that because GEO did
not raise the statute’s applicability and the trial
court did not apply it, the statute should not be
applicable to this appeal.
¶12 Not only do we take judicial notice of the
statute,14 but jurisdictional inquires may be
made by the courts at any stage of the proceedings.15 This Court is duty bound to inquire into
its own jurisdiction and the jurisdiction of the
court below from which the case came by
appeal.16 This duty exists even if it is not raised
by the parties.17
¶13 Compliance with the statutory notice
provisions of the GTCA is a jurisdictional
requirement to be completed prior to the filing
of any pleadings.18 The record before us does
not show that Hall has complied with the
notice provisions of the GTCA, nor does he
allege that he has complied. In addition to the
applicability of §566.4, 57 O.S. 2011 §566.5 pro880
vides that complete exhaustion of statutory
remedies against private correctional facilities
is jurisdictional.19 Based on the record provided, and the plain and unambiguous requirements of 57 O.S. 2011 §566.420 and §566.5,21 the
district court had no jurisdiction over the tort
claims asserted in Hall’s lawsuit and properly
granted the defendant’s motion for summary
judgment.
¶14 Because we determine that the GTCA is
controlling and the one year limitation period
of 12 O.S. 2011 §96 is inapplicable to this cause,
we need not address Hall’s constitutional challenges to §96.22 However, Hall also argues that
the notice and limitation provisions of the
GTCA also violate equal protection and are an
unconstitutional special law.23 This argument is
unconvincing because by extending the notice
provisions of the GTCA to private prisons, the
Legislature has ensured equal treatment
between plaintiffs who are or were confined in
state owned prisons with those who are or
were confined in private prisons as well as any
other plaintiff who has a tort claim against a
governmental entity. Furthermore, we have
already upheld the GTCA under equal protection and special law challenges to the dichotomy it creates between plaintiffs.24
¶15 As for Hall’s claims of tolling because he
was under a legal disability25 we have previously held that where the GTCA includes specific provisions, the general statute of limitations does not apply.26 In Cruse v. Board of
County Commissioners of Atoka County, 1995
OK 143, ¶16, 910 P.2d 998, the Court held that
only where valid notice had been given and the
claim had been timely filed, invoking the
court’s power, could the broad terms of the
general savings statute 12 O.S. 1991 §100 apply.27
The notice provisions of the GTCA limit tolling
due to incapacity from injury to 90 days.28
¶16 The GTCA gave Hall, at most, one year
to file his lawsuit. [90 days for the prison to
deny a claim, 180 days to bring an action after
a claim is denied, and 90 days tolled for incapacity due to injury]. Even if the general tolling
provisions of 12 O.S. 2011 §9629 applied to the
GTCA, this action cannot be maintained under
these facts because timely compliance with the
GTCA was crucial to invoking the jurisdiction
of the district court.
¶17 We need not address the arguments
regarding whether exhaustion of GEO’s grievance procedures30 is applicable to Hall’s claim,31
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Vol. 85 — No. 12 — 4/19/2014
because the action was untimely. It was commenced two years and two months after the
injury occurred. When possible, an appellate
court must hand down that judgment, which
in its opinion, the trial court should have rendered.32 If the trial court reaches the correct
result but for the wrong reason, its judgment is
not subject to reversal.33 Rather, the Court is not
bound by the trial court’s reasoning and may
affirm the judgment below on a different legal
rationale.34 Accordingly, we affirm the trial
court’s grant of summary judgment, but do so
on the basis that the cause must be dismissed
as untimely filed.
CONCLUSION
¶18 Neither party noted the existence of 57
O.S. 2011 §566.4,35 nor did the trial court rely on
the statute to decide the cause. If the trial court
reaches the correct result but for the wrong
reason, its judgment is not subject to reversal.36
Rather, the Court is not bound by the trial
court’s reasoning and may affirm the judgment
below on a different legal rationale.37
¶15 Pursuant to 57 O.S. 2011 §566.4, compliance with the notice provisions of the Governmental Tort Claims Act (GTCA) is required to
bring a tort action against a private correctional
facility. The notice required by the GTCA is a
mandatory prerequisite to filing a claim for tort
damages and it is a jurisdictional requirement.
Nothing in the record indicates compliance
with the GTCA, nor has the plaintiff alleged
that he has complied with the GTCA. Because
the notice of claim requirement of the GTCA is
only tolled 90 days due to incapacity from an
injury, the cause must be dismissed as untimely
filed.
TRIAL COURT AFFIRMED.
CAUSE DISMISSED.
ALL JUSTICES CONCUR.
KAUGER, J:
1. Title 57 O.S. 2011 §566.4 provides in pertinent part:
A. No action may be brought in a court of this state by a prisoner
or former prisoner for mental or emotional injury allegedly suffered while under arrest, being detained, or in custody or incarcerated without a prior showing of actual physical injury. . . .
B. . . .2. No tort action or civil claim may be filed against any
employee, agent, or servant of the state, the Department of Corrections, private correctional company, or any county jail or any
city jail alleging acts related to the duties of the employee, agent
or servant, until all of the notice provisions of the Governmental
Tort Claims Act [FN1] have been fully complied with by the
claimant. This requirement shall apply to any claim against an
employee of the state, the Department of Corrections, or any
county jail or city jail in either their official or individual capacity,
and to any claim against a private correctional contractor and its
Vol. 85 — No. 12 — 4/19/2014
employees for actions taken pursuant to or in connection with a
governmental contract. (Emphasis supplied).
[FN1] Title 51, §§151 et seq.
Unless statutes have changed since the date of Hall’s accident, references in this opinion are to the current versions. Hall’s argument that
this statute only applies to tort actions that arise out of the governmental contracts is contrary to the plain language of the statute when read
as a whole. See, Welch v. Crow, 2009 OK 20, ¶10, 206 P.3d 599.
2. Harmon v. Cradduck, 2012 OK 80, ¶28, 286 P.3d 643 [ Notice is a
jurisdictional prerequisite to bringing an action under the GTCA. Failure to present written notice as required by the GTCA results in a
permanent bar of any action derivative of the tort claim.]. Title 57 O.S.
2011 §566.5 provides that complete exhaustion of statutory remedies
against private correctional facilities is jurisdictional. It provides:
In any legal proceeding filed by an inmate, full and complete
exhaustion of all administrative and statutory remedies on all
potential claims against the state, the Department of Corrections,
private entities contracting to provide correctional services, or an
employee of the state or the Department of Corrections is a jurisdictional requirement and must be completed prior to the filing
of any pleadings.
3. Title 57 O.S. 2011 §566.4, see note 1, supra. Compliance with the
notice provisions of the GTCA is a condition precedent to suit. Duncan
v. City of Nichols Hills, 1996 OK 16, ¶14, 913 P.2d 1303; Gurley v.
Memorial Hosp. of Guymon, 1989 OK 34, ¶6, 770 P.2d 573.
4. The notice provisions of the Governmental Tort Claims Act are
provided by 51 O.S. 2011 §§156 and 157. Section 156 sets forth written
notice requirements and provides a one year limitation period which
can be tolled due to incapacity. It provides in pertinent part:
A. Any person having a claim against the state or a political
subdivision within the scope of Section 151 et seq. of this title
shall present a claim to the state or political subdivision for any
appropriate relief including the award of money damages.
B. Except as provided in subsection H of this section, and not
withstanding any other provision of law, claims against the state
or a political subdivision are to be presented within one (1) year
of the date the loss occurs. A claim against the state or a political
subdivision shall be forever barred unless notice thereof is presented within one (1) year after the loss occurs.
C. A claim against the state shall be in writing and filed with the
Office of the Risk Management Administrator of the Office of
Management and Enterprise Services who shall immediately notify the Attorney General and the agency concerned and conduct a
diligent investigation of the validity of the claim within the time
specified for approval or denial of claims by Section 157 of this
title. A claim may be filed by certified mail with return receipt
requested. A claim which is mailed shall be considered filed upon
receipt by the Office of the Risk Management Administrator.
D. A claim against a political subdivision shall be in writing and
filed with the office of the clerk of the governing body.
E. The written notice of claim to the state or a political subdivision shall state the date, time, place and circumstances of the
claim, the identity of the state agency or agencies involved, the
amount of compensation or other relief demanded, the name,
address and telephone number of the claimant, the name,
address and telephone number of any agent authorized to settle
the claim, and any and all other information required to meet the
reporting requirements of the Medicare Secondary Payer Mandatory Reporting Provisions in Section 111 of the Medicare,
Medicaid and SCHIP Extension Act of 2007 (MMSEA) through
the Centers for Medicare & Medicaid Services (CMS). Failure to
state either the date, time, place and circumstances and amount
of compensation demanded, or any information requested to
comply with the reporting claims to CMS under MMSEA shall
not invalidate the notice unless the claimant declines or refuses
to furnish such information after demand by the state or political
subdivision. The time for giving written notice of claim pursuant to the provisions of this section does not include the time
during which the person injured is unable due to incapacitation from the injury to give such notice, not exceeding ninety
(90) days of incapacity.
. . . (Emphasis supplied)
Section 157 provides:
A. A person may not initiate a suit against the state or a political
subdivision unless the claim has been denied in whole or in part.
A claim is deemed denied if the state or political subdivision fails
to approve the claim in its entirety within ninety (90) days,
unless the state or political subdivision has denied the claim or
reached a settlement with the claimant before the expiration of
that period. If the state or a political subdivision approves or
denies the claim in ninety (90) days or less, the state or political
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881
subdivision shall give notice within five (5) days of such action
to the claimant at the address listed in the claim. If the state or
political subdivision fails to give the notice required by this subsection, the period for commencement of an action in subsection
B of this section shall not begin until the expiration of the ninetyday period for approval. The claimant and the state or political
subdivision may continue attempts to settle a claim, however,
settlement negotiations do not extend the date of denial unless
agreed to in writing by the claimant and the state or political
subdivision.
B. No action for any cause arising under this act, Section 151 et
seq. of this title, shall be maintained unless valid notice has been
given and the action is commenced within one hundred eighty
(180) days after denial of the claim as set forth in this section. The
claimant and the state or political subdivision may agree in writing to extend the time to commence an action for the purpose of
continuing to attempt settlement of the claim except no such
extension shall be for longer than two (2) years from the date of
the loss.
5. The Attending Physician Note dated 9/7/2010 is attached to the
Defendant’s Motion for Summary Judgment and it provides in pertinent part:
Physical Examination:
General Appearance: Development: well developed and appears
stated age. Level of Distress: in no distress. Level of consciousness: alert and awake.
HEENT: Scalp: atraumatic Head: No signs of trauma. Nose: No
epistaxis. Pharynx: normal.
Neck: Trachea: midline. Jugular Veins: flat at 45 degrees on
stretcher. Bony structures: No tenderness to palpation.
Respiratory: Chest inspection: No use of accessory muscles or
intercostal retractions. Breath sounds: normal in all lung fields.
Adventitious sounds: none.
Cardiovascular: Heart rate: normal, Heart rhythm: regular. Cardiac murmurs: none. Cartoid arteries: full and equal bilaterally.
Abdominal aorta: No pulsatile mass or bruit. Popiteal arties:
both equal to palpation. Dorsallis pedis arteries: present and
equally bilaterally.
Gastrointestinal: Palpation of Abdomen: NO tenderness or
guarding.
Musculoskeletal: Sternochondral junctions: nontender.
Neurologic: Provocative testing: gait not tested. CN3: pupillary
light response normal bilaterally. CN5: facial sensations normal
bilaterally. CN8: Normal hearing for age. CN 9-10: soft palate
movements elevates normally. CN 12: toungue protrusion in
midline. Motor examination: moves arms and legs spontaneously. Sensory examination: light touch intact arms and legs.
Psychiatric: Orientation: oriented to person to place to time situation. (Emphasis in original).
6. Title 12 O.S. 2011 §95 provides in pertinent part:
. . .11. All actions filed by an inmate or by a person based upon
facts that occurred while the person was an inmate in the custody of one of the following:
a. the State of Oklahoma,
b. a contractor of the State of Oklahoma, or
c. a political subdivision of the State of Oklahoma,
to include, but not be limited to, the revocation of earned credits
and claims for injury to the rights of another, shall be commenced within one (1) year after the cause of action shall have
accrued; . . .
7. Title 12 O.S. 2011 §96 provides:
If a person entitled to bring an action other than for the recovery
of real property, except for a penalty or forfeiture, be, at the time
the cause of action accrued, under any legal disability, every such
person shall be entitled to bring such action within one (1) year
after such disability shall be removed, except that, after the effective date of this section, an action for personal injury to a minor
under the age of twelve (12) arising from medical malpractice
must be brought by the minor’s parent or guardian within seven
(7) years of infliction of the injury, provided a minor twelve (12)
years of age and older must bring such action within one (1) year
after attaining majority, but in no event less than two (2) years
from the date of infliction of the injury, and an action for personal injury arising from medical malpractice to a person
adjudged incompetent must be brought by the incompetent
person’s guardian within seven (7) years of infliction of the
injury, provided an incompetent who has been adjudged competent must bring such action within one (1) year after the adjudication of such competency, but in no event less than two (2) years
from the date of infliction of the injury.
8. The Okla. Const. art. 5, §59 provides:
882
§ 59. Uniform operation of general laws - Special laws when
general law applicable.
Laws of a general nature shall have a uniform operation
throughout the State, and where a general law can be made
applicable, no special law shall be enacted.
The Okla. Const. art. 5, §46 provides:
The Legislature shall not, except as otherwise provided in this
Constitution, pass any local or special law . . .
9. The Okla. Const. art. 2, §2 provides:
All persons have the inherent right to life, liberty, the pursuit of
happiness, and the enjoyment of the gains of their own industry.
The Fourteenth Amendment of the United States Constitution
provides in pertinent part:
Section 1.
All persons born or naturalized in the United States, and subject
to the jurisdiction thereof, are citizens of the United States and of
the state wherein they reside. No state shall make or enforce any
law which shall abridge the privileges or immunities of citizens
of the United States; nor shall any state deprive any person of
life, liberty, or property, without due process of law; nor deny to
any person within its jurisdiction the equal protection of the
laws. . . .
10. Title 57 O.S. 2011 §566.4 see note 1, supra.
11. Hall had also alleged that his claim survives under a §1983
action and its 2 year limitation period. In the order overruling GEO’s
motion to dismiss, the trial court also granted Hill 10 days to amend
his petition to plead a §1983 action. However, the record presented on
appeal does not reflect that this was ever done. Accordingly, any questions regarding a §1983 action are not before the Court in this cause.
12. Title 57 O.S. 2011 §566.4 see note 1, supra.
13. Title 57 O.S. 2011 §566.4 see note 1, supra.
14. Title 12 O.S. 2011 §2201 provides in pertinent part;
A. Judicial notice shall be taken by the court of the common law,
constitutions and public statutes in force in every state, territory
and jurisdiction of the United States....
15. Jurisdictional inquiries into judicial cognizance may be considered and examined at any stage of the proceedings, either on motion
or sua sponte. In re Oklahoma Boll Weevil Eradication Organization,
1999 OK 1, ¶7, fn. 22, 976 P.2d 1035; Lincoln Bank and Trust Co. v. Okla.
Tax Com’n, 1992 OK 22, ¶6, fn. 14, 827 P.2d 1314, 1318; Fields v. A & B
Electronics, 1990 OK 7, ¶4, 788 P.2d 940, 941; Baylis v. City of Tulsa,
1989 OK 90, ¶6, 780 P.2d 686, 688; Luster v. Bank of Chelsea, 1986 OK
74, ¶13,730 P.2d 506, 508.
16. Broadway Clinic v. Liberty Mut. Ins. Co., 2006 OK 29, ¶25, 139
P.3d 873; Stites v. DUIT Const. Co., Inc., 1995 OK 69, ¶ 8, n. 10, 903 P.2d
293, 297; Lincoln Bank and Trust Co. v. Okla. Tax Comm’n, see note 15,
supra; Cate v. Archon Oil Co., Inc., 1985 OK 15, ¶ 10, n. 12, 695 P.2d
1352, 1356, n. 12; Pointer v. Hill, 1975 OK 73, ¶ 14, 536 P.2d 358, 361.
17. Broadway Clinic v. Liberty Mut. Ins. Co., see note 16, supra;
United Airlines v. State Bd. of Equalization, 1990 OK 29, ¶7, 789 P.2d
1305. Hall relies on Hathaway v. State ex rel. Medical Research & Technical Authority, 2002 OK 53, 49 P.3d 740 and similar federal caselaw for
the proposition that GEO did not invoke the provisions of the GTCA
and raise it as an affirmative defense, application of the GTCA is
waived. This reliance is misplaced. Hathaway addressed the repercussions of filing a notice of claim prematurely. Nor is this a case of substantial compliance because the notice of claim was not filed at all and
the lawsuit was brought over 2 years after the incident occurred.
18. Title 57 O.S. 2011 §566.5, see note 2, supra.
19. Title 57 O.S. 2011 §566.5, see note 2, supra.
20. Title 57 O.S. 2011 §566.4, see note 1, supra.
21. Title 57 O.S. 2011 §566.5, see note 2, supra.
22. 12 O.S. 2011 §96, see note 7, supra.
23. The Okla. Const. art. 5, §59, see note 8, supra; The Okla. Const.
art. 5, §46, see note 8, supra; The Okla. Const. art. 2, §2 , see note 9,
supra; The Fourteenth Amendment of the United States Constitution,
see note 9, supra.
24. Anderson v. Eichner, 1994 OK 136, ¶20, 890 P.2d 1329; Wilson v.
Gipson, 1998 OK 35, ¶14, 753 P.2d 1349; Childs v. State ex rel. Okla.
State Univ., 1993 OK 18, ¶20, 848 P.2d 571, cert. denied 114 S.Ct. 92, 510
U.S. 827, 126 L.Ed.2d 60. It has also withstood challenges to the notice
provisions as being a special law. Jarvis v. City of Stillwater, 1987 OK
5, ¶6, 732 P.2d 470; Black v. Ball Janitorial Service, Inc., 1986 OK 75, ¶13,
730 P.2d 510; Reirdon v. Wilburton Bd. of Ed., 1980 OK 67, ¶4, 611 P.2d
239.
25. Title 12 O.S. 2011 §96, see note 7, supra.
26. Rout v. Crescent Public Works Authority, 1994 OK 85, ¶8, 878
P.2d 1045 [The limitations within the GTCA control over general statutory law.]; Shanbour v. Hollingsworth, 1996 OK 67, ¶1, 918 P.2d 73
[General provisions of 12 O.S. 1991 §2006(B)(2) relating to excusable
neglect are not applicable to GTCA]: Johns By and Through Johns v.
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Vol. 85 — No. 12 — 4/19/2014
Wynnewood School Bd. of Education, 1982 OK 101, ¶7, 656 P.2d 248
[Provisions of 12 O.S. 1981 §96 do not apply to extend the time to give
notice of a claim on behalf of a minor.]. See also, although not precedential, Tyler By and Through Tyler v. Board of County Com’rs of Kay
County, 1996 OK CIV APP 31, ¶9, 915 P.2d 951 said:
In this action, Tyler did not timely file her action in district court.
Thus, the district court’s power was not invoked and the action
was still under the manta of the Act, not controlled by the general laws of this state, including 12 O.S. 1991 § 96 . The trial court
did not err in declining to apply that section to Tyler’s action.
See also, Duncan v. City of Nichols Hills, 1996 OK 16, ¶30, 913 P.2d
1303 [GTCA did not apply where specific provisions of employment
discrimination claims were brought under anti-discrimination act 25
O.S. 1991 §1101]; United Brick & Tile Co. v. Roy, 1960 OK 174, ¶10, 356
P.2d 107 [General statute of limitations is not applicable to claims
under the Workmen’s Compensation Act.
27. Cruse v. Board of County Commissioners of Atoka County,
1995 OK 143, ¶18, 910 P.2d 998, [Section 100 permits the refiling of a
governmental tort claims action only where the court’s power has been
invoked by the original action.]
28. Title 51 O.S. 2011 §156, see note 4, supra.
29. Title 12 O.S. 2011 §96, see note 7, supra.
30. We express no opinion on the exhaustion of administrative
remedies as applied to GEO’s grievance procedure. However, we note
that, although not precedential, the Court of Civil Appeals has recognized exhaustion is required for non-tort claims. Burghart v. Corrections Corporation of America, 2009 OK CIV APP 76, ¶14, 224 P.3d 1278;
Simmons v. Corrections Corporation of America, 2006 OK CIV APP 13,
¶13, 130 P.3d 305.
Title 57 O.S. 2011 §566.5 provides in pertinent part:
In any legal proceeding filed by an inmate, full and complete
exhaustion of all administrative and statutory remedies on all
potential claims against the state, the Department of Corrections,
private entities contracting to provide correctional services, or an
employee of the state or the Department of Corrections is a jurisdictional requirement and must be completed prior to the filing
of any pleadings.
31. Title 57 O.S. 2011 §564 provides in pertinent part:
An inmate in the custody of the Department of Corrections shall
completely exhaust all available administrative remedies on all
potential claims against the state, any governmental entity, the
Department of Corrections, a private company providing services
to the Department of Corrections, or an employee of the state, any
governmental entity, the Department of Corrections, or a private
company providing services to the Department of Corrections
prior to initiating an action in district court. Upon release from
custody an inmate shall be barred from bringing any action for a
claim arising during custody or incarceration in which the inmate
has failed to exhaust all administrative remedies.
32. Dixon v. Bhuiyan, 2000 OK 56, ¶9, 10 P.3d 888.
33. Dixon v. Bhuiyan, see note 32, supra; In the Matter of the Estate
of Bartlett, 1984 OK 9, ¶4, 680 P.2d 369.
34. Dixon v. Bhuiyan, see note 32, supra; McMinn v. City of Oklahoma City, 1997 OK 154, ¶11, 952 P.2d 517.
35. Title 57 O.S. 2011 §566.4, see note 1, supra.
36. Dixon v. Bhuiyan, see note 32, supra; In the Matter of the Estate
of Bartlett, see note 33, supra.
37. Dixon v. Bhuiyan, see note 32, supra; McMinn v. City of Oklahoma City, see note 34, supra.
2014 OK 23
IN RE: INITIATIVE PETITION NO. 397,
STATE QUESTION NO. 767, TAKE
SHELTER OKLAHOMA and KRISTI
CONATZER, Petitioners, v. STATE OF
OKLAHOMA, ex rel., ATTORNEY
GENERAL, E. Scott PRUITT Respondent.
ing the ballot title prepared by the Oklahoma Attorney General for the proposed
initiative. We hold that: 1. A proponent of
an initiative petition must file or submit a
copy of the initiative petition and a copy of
the ballot title to the Attorney General
when the proponent files the initiative petition and ballot title with the Secretary of
State, 34 O.S. § 9 (A) & (B); 2. The Attorney
General must file a response to a ballot title
within five business days from the date the
ballot title is filed with the Secretary of
State, 34 O.S. § 9 (D); 3. The Attorney General’s § 9(D) response to a ballot title is
statutorily effective although the Attorney
General’s response was filed two days late;
4. A proponent of an initiative who challenges a ballot title prepared by the Attorney General has the burden to show that
the Attorney General’s ballot title is legally
incorrect, or is not impartial, or fails to
accurately reflect the effects of the proposed initiative; 5. The Attorney General’s
ballot title challenged in this proceeding is
legally correct, impartial, and accurately
reflects the effects of the proposed initiative; 6. When a ballot title appeal has been
made, a proponent’s ninety-day period of
time to collect signatures commences when
the ballot title appeal is final.
BALLOT TITLE PREPARED BY THE
OKLAHOMA ATTORNEY GENERAL
DECLARED TO BE LEGALLY SUFFICIENT
FOR THE PROPOSED INITIATIVE
David R. Slane and Richard Morrissette, Oklahoma City, for Co-Petitioners/Proponents,
Take Shelter Oklahoma, Kristi Conatzer
Neal Leader, Senior Assistant Attorney General
and Charles S. Rogers, Senior Assistant Attorney General, Oklahoma City, for Respondent
State of Oklahoma, ex rel. Attorney General E.
Scott Pruitt
EDMONDSON, J.
APPEAL OF ATTORNEY GENERAL’S
BALLOT TITLE
¶1 On Sept. 18, 2013, Initiative Petition No.
397, State Question 767 was filed with Secretary of State. The Initiative Petition proposes
amendments to the State Constitution with an
ultimate primary purpose of constructing
storm shelters for schools. Proponents also
filed with the Secretary of State a proposed ballot title for their proposed Initiative.
¶0 Proponents of an initiative petition
brought an appeal in this Court challeng-
¶ 2 The Oklahoma Attorney General disagreed with Proponents’ ballot title and then
No. 112,264. April 1, 2014
Vol. 85 — No. 12 — 4/19/2014
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883
prepared and filed with the Secretary of State a
new ballot title for the Initiative. Proponents
disagreed with the ballot title prepared by the
Attorney General and sought relief from this
Court by filing an appeal from the new ballot
title. Proponents’ application for an order to disqualify the Attorney General from participation
in this proceeding was withdrawn by counsel
for Proponents during oral argument before the
Court en banc and need not be addressed.
I. Attorney General’s Jurisdiction to File a
New Ballot Title
Proponents claim that the Attorney General lost jurisdiction to file a new ballot title
because the Attorney General’s objection to
Proponents’ ballot title was untimely filed
with the Secretary of State.
¶3 On Wednesday, September 18, 2013, Initiative Petition No. 397, State Question 767,
was filed with Secretary of State by Proponents. On Thursday, September 19, 2013, the
Secretary of State sent a notice by Interagency
Mail to the Attorney General that an initiative
petition had been filed and submitted a copy of
the ballot title to the Attorney General. The
Attorney General states that the notice from
the Secretary of State was received on Friday,
September 20, 2013. On Friday September 27,
2013, the Attorney General filed with the Secretary of State a notice that the ballot title did not
comply with applicable laws, and that pursuant to 34 O.S.2011 § 9(D) he would prepare and
supply to the Secretary of State a ballot title
within ten days. On October 11, 2013, the
Attorney General filed a ballot title with the
Secretary of State.
¶4 Proponents argue that the Attorney General has five business days from the date the
ballot title is filed with the Secretary of State to
file an objection to a ballot title. They submit
that they filed the ballot title on Wednesday
September, 18, 2013, and that the Attorney
General’s objection filed on Friday, September
27, 2013, was beyond the five-day limit. They
contend that the Attorney General lost jurisdiction to file an objection when the five-day
period expired.
¶5 The Attorney General argues that the fiveday period for him to file an objection to a ballot title commences when a ballot title is filed
with the Attorney General by a proponent. The
Attorney General submits that the Proponent
failed to file the ballot title with the Attorney
General and that this five-day period never
884
commenced. Proponents argue that they are
not required to file copies of a proposed initiative and ballot title with the Attorney General.
The Attorney General also argues that his
objection to the ballot title was filed with the
Secretary of State within five business days
from the date he received copies of the initiative petition and ballot title from the Secretary
of State via interagency mail.
¶ 6 The parties have different views on the
meaning of language in 34 O.S.2011 § 9 (A), (B),
& (D). The relevant language states that:
A. When a referendum is ordered by
petition of the people against any measure
passed by the Legislature or when any measure is proposed by initiative petition, whether
as an amendment to the Constitution or as
a statute, it shall be the duty of the parties
submitting the measure to prepare and file one
copy of the measure with the Secretary of State
and one copy with the Attorney General.
34 O.S.2011 § 9(A) (emphasis added).
B. The parties submitting the measure shall
also submit a suggested ballot title which shall
be filed on a separate sheet of paper and shall
not be deemed part of the petition. . . .
34 O.S.2011 § 9(B) (emphasis added).
D. The following procedures shall apply
to ballot titles of referendums ordered by a
petition of the people or any measure proposed by an initiative petition:
1. After the filing of the petition and prior to
the gathering of signatures thereon, the Secretary of State shall submit the proposed ballot
title to the Attorney General for review as to
legal correctness. Within five (5) business days
after the filing of the measure and ballot title,
the Attorney General shall, in writing, notify
the Secretary of State whether or not the proposed ballot title complies with applicable laws.
...
34 O.S.2001 § 9 (D) (1) (emphasis added).
¶7 Section 9(A) states that the “parties submitting the measure” must prepare and file one
copy of the “measure” with the Secretary of
State and one copy with the Attorney General. In
§ 9(A) “submitting the measure” identifies who
is required to file a copy of the measure with both
the Attorney General and the Secretary of State.
¶8 Section 9(B) states that the parties “submitting the measure” “shall also submit a sug-
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Vol. 85 — No. 12 — 4/19/2014
gested ballot title . . . .” Section 9(B) does not
expressly identify the Secretary of State, Attorney General or both are to receive the submitted ballot title. However, a party’s duty to
submit the ballot title is expressly stated to be
performed with the act of submitting the proposed
measure to the Attorney General and Secretary of
State. Section 9(B) plainly states that the parties
“submitting the measure” shall also submit a
suggested ballot title.
¶9 The primary goal in reviewing a statute is
to ascertain legislative intent, if possible, from
a reading of the statutory language in its plain
and ordinary meaning.1 This is so because the
plain words of a statute are deemed to express
legislative authorial intent in the absence of
any ambiguity or conflict in language.2 The test
for ambiguity in a statute is whether the statutory language is susceptible of more than one
reasonable interpretation.3 Generally, and consistent with a court’s construction of alleged
ambiguity in a contract,4 a judicial determination of the presence of more than one reasonable construction of the statutory language, i.e.,
ambiguity, presents a question of law5 because
the determination that a statutory construction
is reasonable is based initially on a plain meaning of the words in the statute where no fact is
disputed.6 The plain language of § 9 (A) & (B)
states that the ballot title is submitted with the
measure, and the measure is submitted to both
the Attorney General and the Secretary of State. We
hold that Proponents were required to file or
submit a copy of initiative petition and a copy
of the ballot title to the Attorney General when
they filed the initiative petition and ballot title
with the Secretary of State.
¶10 The next argument made by the parties
is whether the five business days for the Attorney General to object to a ballot title commence
on (1) the day a proponent files the initiative
petition and ballot title with the Secretary of
State, or (2) the date the initiative petition and
ballot title are filed with the Attorney General,
or (3) the date the Attorney General receives
notice from the Secretary of State that an initiative petition and ballot title have been filed.
¶11 The Attorney General’s argument is that
34 O.S. § 9 should be construed to mean that
the filed copy of the ballot title which it reviews
for legal correctness is the one filed with the
Attorney General, and that the filing of this
copy with the Attorney General is also the
event which commences the Attorney General’s five-day period to file an objection to the
Vol. 85 — No. 12 — 4/19/2014
ballot title. We reject that construction of 34
O.S. § 9, as contrary to the plain language of
that statute.
¶12 The statutory language providing the
Attorney General five business days to object
to a ballot title does not occur in isolation from
the rest of the statute in which it appears. The
five-day period occurs not in paragraphs “A”
or “B” but in paragraph “C” and immediately
following a sentence stating that: “After the filing of the petition and prior to the gathering of
signatures thereon, the Secretary of State shall
submit the proposed ballot title to the Attorney
General for review as to legal correctness.” This
sentence refers to the Secretary of State performing the act of submitting a copy of the
ballot title to the Attorney General “for review
as to legal correctness.” The plain language of
the statute states that the reason the Secretary
of State submits a copy of the ballot title to the
Attorney General is for the Attorney General to
determine the legal correctness of the ballot
title. Because of this duty on the Secretary of
State to submit a copy of the ballot title to the
Attorney General for review as to legal correctness, we conclude that the copy that the Secretary of State submits to the Attorney General is
a copy of the ballot title filed of record with the
Secretary of State.
¶13 Further, the language “[w]ithin five (5)
business days after the filing of the measure and
ballot title the Attorney General shall, in writing, notify the Secretary of State whether or not
the proposed ballot title complies with applicable laws” occurs immediately after language
stating that the Secretary of State has a duty to
provide a copy of the ballot title to the Attorney General for the purpose of this determination. The statutory language does not state that
the five-day period commences upon the date
the Attorney General receives notice of the filing from the Secretary of State.
¶14 During oral argument before the Court
en banc, counsel for the Attorney General
argued that the Attorney General’s construction of 34 O.S. § 9 was a long-standing construction of a statute by a state agency, and that
a long-standing construction should be given
deference by the Court. We agree that deference may be afforded to the long-standing
construction of a statute by a state agency.7 We
also recognize that continual construction of a
statute by the agency charged to enforce it
must be given great weight; and that when the
Legislature has convened many times during a
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885
period in which an administrative agency has
construed a statute and it has not expressed its
disapproval with that construction, the Legislature’s silence may be regarded as acquiescence in or approval of the agency’s construction.8 However, upon a closer examination of
the Attorney General’s argument, we conclude
that these principles do not apply.
¶15 Generally, a published Attorney General
Opinion may be persuasive authority for a
court, but a court is not bound by the Opinion
of the Attorney General.9 It is also correct that
legislative silence after promulgation of a published Attorney General Opinion may be judicially construed as a legislative approval of an
Attorney General’s construction of an ambiguous and uncertain statute.10 But in the matter
before us, no published Attorney General Opinion has been cited in support of the Attorney
General’s construction of 34 O.S. § 9. We have no
Attorney General Opinion before us that would
allow us to examine its ratio decidendi for a quality of persuasiveness in legal argument. No published agency rule has been cited by the Attorney General.11 The record of facts before us contains no reference to a previous public construction of 34 O.S. § 9 by the Attorney General on the
issues before the Court.12
¶16 Deference given to a state agency’s construction of a statute is based upon the statute’s
language being ambiguous or uncertain,13 and
the fact that the agency’s construction must be
legally reasonable when applied to the circumstance,14 and the agency’s construction
must be consistent and continual in a public
manner so that the Legislature has notice of the
construction by the agency.15 Is 34 O.S. § 9
ambiguous and uncertain? We think not, and
rules of construction for determining legislative intent for an ambiguous statute are not
needed in this case.
¶17 Prior to 1994, paragraph § 9(D) expressly
provided for the five-day period to commence
on the date the ballot title was filed “with the
Attorney General.”16 In 1994 this language
expressly stating that the five-day period commenced upon filing with the Attorney General
was removed from the statute by legislative
amendment.17 The 1994 amendment also added
language that the Secretary of State “shall submit the proposed ballot title to the Attorney
General for review as to legal correctness.”18 In one
legislative act the Secretary of State was given
the duty of providing a copy of the ballot title
to the Attorney General for a review of the bal886
lot title’s legal correctness and the date to commence the five-day period for the Attorney
General to file an objection was changed.19
¶18 During oral argument before the Court
en banc, counsel for the Attorney General
argued that a “five full days” were needed by
the Attorney General to examine a proposed
initiative and ballot title to make a correctly
reasoned and informed approval of, or objection to, a ballot title, and that the Attorney’s
General’s five-day limit should not be shortened by whatever means the Secretary of State
may, in his or her discretion, use to provide a
copy of the ballot title to the Attorney General.
In the absence of evidence to the contrary, a
court will generally presume that a public official will act in good faith to perform the official’s duties and will faithfully discharge the
duties the law imposes on the official.20 We
decline to assume that a Secretary of State will
select a method of notice that is inconsistent
with 34 O.S. § 9(D), or that a Secretary of State
is either unwilling or unable to convey a copy
of the ballot title to the Attorney General immediately upon its filing when the Secretary of State
performs this duty imposed by 34 O.S. § 9(D).
¶19 Because of the arguments of the parties,
we must note that the day an initiative petition
is filed with the Secretary of State is not counted as the first day of the five-day period
because fractions of a day are disregarded in
statutory computations which include more
than one day and when there is no question of
priority involved.21 We must note that § 9(D)
does not use the language suggested by the
Attorney General that it is necessary that he be
provided “five full days” to file a response to
the ballot title. The statute requires the Attorney General’s response within five days from
the filing with the Secretary of State. We also
note that the “five days” is further defined by
the statute as five business days. We construe
the phrase “business” to be consistent with 25
O.S. Supp. 2012 § 82.1, and therefore exclude
statutory “holidays” defined in § 82.1, so that a
business day would be Monday through Friday, inclusive, and does not include Saturday,
Sunday, or any statutorily listed holiday in §
82.1 which may fall on any day within the fiveday period after the initiative petition and ballot title are filed with the Secretary of State.22
¶20 After a proponent submits a copy of both
the proposed measure and ballot title to both
the Secretary of State and the Attorney General,
and before signatures are collected, the Secre-
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tary of State submits the proposed ballot title to
the Attorney General for review as to legal correctness, and the Attorney General must
respond within five business days, and the
response must state whether a proposed ballot
title complies with applicable laws.23 If the
Attorney General objects to the ballot title, then
the Attorney General must file with the Secretary of State a corrected ballot title within “ten
(10) business days of determining that the proposed ballot title is defective.”24
¶21 The ballot title was filed with the Secretary of State on Wednesday, September 18,
2013. The first day of the five-day period was
Thursday, September 19, 2013, and the fifth
day was Wednesday, September 25, 2013. The
response was filed by the Attorney General
with the Secretary of State on Friday, September 27, 2013. The response was filed two days
late. Proponents argue that the Attorney General had ten business days from September 25,
2013, to file a new ballot title and the new ballot title had to be filed by Wednesday, October
9, 2013. They argue that the ballot title filed by
the Attorney General on Friday, October 11,
2013, was untimely and of no legal effect. However, if the filing of the Attorney General on
September 27, 2013, although untimely, still
retained legal efficacy, then the ballot title filed
by the Attorney General on October 11, 2013,
was on the tenth business day after he filed his
initial response to ballot title.
¶22 Proponents argue that the 34 O.S. § 9 (D)
duty imposed on the Attorney General is a
mandatory duty to file a response within five
business days; and then if an objection to the
ballot title is timely made, the duty to file a
new ballot title within ten business days is also
a mandatory duty. Proponents conclude that
because the time limit is mandatory it is also
jurisdictional. They state that the Attorney
General lost jurisdiction to respond to the ballot title and to file a new ballot title when he
did not file within five days from the date the
ballot title was filed with the Secretary of
State.
¶23 Generally, the legal principle which has
been followed in this jurisdiction for many
years is that a public official performing a
statutorily required duty will not be divested
of jurisdiction to perform that duty by the mere
passage of time unless the statute also states
that the duty shall not be performed by that
official after the expiration of a certain time or
date. For example, in School District No. 61,
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Payne County v. Consolidated District No. 2,
Coyle, Logan County, 1925 OK 518, 237 P. 1110,
we stated the following:
The case of People v. Cook, 14 Barb. (N. Y.)
259 [1852], seems to be one among the early
cases passing upon this question, and is
frequently referred to in later decisions,
wherein the following rule is announced in
the syllabus of the opinion:
Statutes directing the mode of proceeding by public officers are directory, and a
strict compliance with their provisions is
not essential to the validity of the proceedings, unless it be so declared in the statute.
Within this principle, where a statute directs a
public officer to do a thing within a certain
time, without any negative words restraining
him from doing it afterwards, the naming the
time will be regarded as directory merely, and
not as a limitation of his authority. This rule
has been very steadfastly adhered to, by
the courts, in all cases where certain acts
are directed to be done, by public officers,
within a stated time, and in a particular
manner, when those acts are of a public
character, and concern the public interests,
or when the rights of third persons are
concerned.
A discussion of the rules announced in
the syllabus above quoted will be found
on page 290 and the following pages of
the opinion, citing numerous authorities
illustrating the application of the rules
announced.
In 25 R. C. L. p. 769, § 16, the following
language is found:
“In general, statutory provisions directing the mode of proceeding by public
officers and intended to secure order,
system, and dispatch in proceedings, and
by a disregard of which the rights of parties cannot be injuriously affected, are
not regarded as mandatory, unless accompanied by negative words importing that the
acts required shall not be done in any other
manner or time than that designated. * * *”
School District No. 61, Payne County, 237 P. at
1111 (emphasis added).
Application of School District No. 61, Payne
County, supra, requires an examination of 34
O.S. § 9, and a determination if any words state
that the acts required by the Attorney General
shall not be done in any other manner or time
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than that designated. There is no express language in 34 O.S. § 9 which removes jurisdiction
from the Attorney General to file an objection
to a ballot title two days late, and there is nothing in the plain language of § 9 indicating a
legislative intent to remove the Attorney General from the ballot title procedure by an
untimely response to the filing of an initiative
or ballot title.25
¶24 Our opinion in School District No. 61,
Payne County, supra, was released in 1925 and
applied a principle used by several courts since
at least 1852.26 Proponents have not made any
argument that the holding in School District No.
61, Payne County, supra, has been superseded.
The rationale used in School District No. 61,
Payne County, supra, is found in other contexts
such as the general rule that jurisdiction of a
court, once correctly invoked, will not usually
be divested by a subsequent event such as the
passage of time unless a statute expressly states
the contrary or if a legislative intent is shown
that would make a time limit mandatory.27 Proponents have not made any argument that a
recognized public policy calls for modifying or
overruling School District No. 61, Payne County,
supra. The Legislature is certainly aware that in
the context of the initiative process it may
restrict a filing after a certain date, and appears
to have used such language in 34 O.S. 2011 §4,
where with reference to filing signature sheets
with the Secretary of State it has enacted language stating that “additional signature sheets
shall not be accepted after 5:00 p.m. on the
ninetieth day.”28
¶25 We recognize the possibility that a statute may express a mandatory requirement in
the absence of express language stating that the
requirement is mandatory. Several rules of construction may be used to make a determination
whether express language is necessary to create mandatory law or alter certain legal interests in a particular circumstance.29 Specifically,
when examining whether statutory language is
mandatory in the context of statutorily specified time limits, the Court may examine whether statutory time limits “attach directly to the
right created.”30 Before us today we have no
authority cited in either briefs or in oral argument concerning whether express language is
necessary to show a mandatory statutory
requirement in this context or whether the fiveday limit attaches to a right itself. However, the
issue presented is publici juris because it concerns the proper procedure used by the People
888
when enacting legislation.31 Because the issue is
publici juris and no additional evidence is necessary to adjudicate an issue of law, we may
nevertheless adjudicate the issue whether the
five-day period is mandatory in nature.32
¶26 The purpose of the statutory initiative
process is to provide a procedure where the
People, the citizens of Oklahoma, exercise their
right of initiative whereby they propose bills
and laws and enact them or reject them at the
polls independent of legislative assembly.33
This right of the People to enact laws through
an initiative petition process is reserved in
Article V § 1 of the Oklahoma Constitution,34
and we have explained that the People’s right
is a fundamental and precious right zealously
protected by this Court.35 Proponents view the
Attorney General’s participation in the initiative petition process in this case as an obstruction to the People’s right of initiative. We disagree. As we explain herein, the Attorney
General’s participation is not as a typical counsel in an adversarial litigation dispute. An
Attorney General does not use the People’s
initiative process as a vehicle to champion his
or her political positions. An Attorney General’s participation in an initiative process is as a
neutral legal advisor for the People. The Attorney General is required by statute to give an
opinion on a ballot title proposed with an initiative petition and is required by statute to
defend ballot titles, either those filed by proponents which he approves, or those authored
and filed by the Attorney General. Participation by the Attorney General in every initiative
petition proceeding is required by statute.
¶27 The Constitution grants to the People a
right to an initiative and states that the Legislature shall make suitable provisions for carrying
into effect this right,36 and the statutorily
required participation by the Attorney General
in the ballot title process is part of the initiative
process for carrying into effect the right of the People. As we note herein, a properly worded ballot title is one means used to combat fraud and
deceit in the initiative process. The ballot title
functions as a safeguard to protect the initiative right of the People, and “we will not cripple, avoid or deny by technical construction
the initiative right.”37 This portion of Proponents’ argument ultimately rests upon a technical construction that the five-day filing period
for the Attorney General in 34 O.S. § 9(D) must
be attached to a right possessed by, and litigated by, an Attorney General. We reject this
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view as contrary to the plain language of 34
O.S. § 9(D) and conclude that the five-day
period § 9(D) does not attach directly to a statutorily created right possessed by the Attorney
General. The plain language of the statute
places a duty upon the Attorney General that is
the nature of the exercise of a governmental
function that is part of a legislative process
used by the People.
¶28 Proponent’s jurisdiction argument
requires a determination whether the Legislature “had uppermost in mind” the effect of the
procedural step at issue upon the process, and
whether the Legislature intended it not as a
“mere procedural step” but a requirement that
was essential to the result of the process or the
Legislature’s intended goal.38 In Proponents’
argument, the “procedural step” which they
urge as jurisdictional is the timeliness of the
response filed by the Attorney General. However, we find no legislative intent in the plain
language of the statute to make the timeliness of
the response an essential or critical step in the
result of the initiative process.
¶29 Our conclusion will not impose any
additional burden upon the People to propose
initiatives. This is so because (1) the Attorney
General concedes that timeliness of his actions
may be controlled by mandamus, and (2) as
explained herein, we recognize that a proponent’s ninety-day period to collect signatures
may commence after a ballot title appeal in
accordance with the plain language and meaning of the ballot title statutes and prior opinions of this Court.
¶30 We have stated the general rule that
“Those who challenge the validity of actions of
public officials apparently within their statutory powers must carry the burden of demonstrating such invalidity.”39 Proponents have not
met their burden to show that the Attorney
General’s filing two days late deprived the filing of legal effect. We reject the argument made
by Proponents that the time limits for the
Attorney General in 34 O.S. §9(D) are jurisdictional. We hold that the Attorney General’s § 9(D)
response to a ballot title required by law to be filed
within five days from the date the ballot title is filed
with the Secretary of State is statutorily effective
although the Attorney General’s filing is two days
late. School District No. 61, Payne County, supra.
¶31 Although we reject Proponents’ argument that the five-day time limit for the Attorney General in 34 O.S. § 9(D) is jurisdictional,
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we must note that an Attorney General may not
thwart an initiative by failing to file a response
to the filings with the Secretary of State. Counsel
for the Attorney General observed in his brief
and during oral argument that the proper judicial remedy for a violation of this five-day deadline would be a writ of mandamus to compel a
response.40 We also note that although the Attorney General states that mandamus may be used,
he also invokes the substantial compliance standard of 34 O.S. § 24.41
¶32 In some circumstances, judicial application of a substantial compliance standard to a
duty to take an action within a defined period
of time may result in an excused performance
within that time period.42 Although not expressly argued as a syllogism, when his § 24 substantial-compliance-standard argument is combined with his argument that after receipt of the
ballot title by the Attorney General a “full five
days” of legal research is needed by the attorney(s) assigned to review a proposed ballot
title and file a response with the Secretary of
State, he is essentially creating a syllogism with
the conclusion that he should be excused from
the five-day period for filing a response to a ballot title because factual circumstances prevent
him from meeting this deadline. With this conclusion, the Attorney General’s hypothetical
mandamus action would not turn on whether
the Attorney General had missed the five-day
deadline, but whether the Attorney General had
sufficient factual reasons for delay past the
five-day deadline and only when such reasons
were legally insufficient would the writ issue.43
We decline to adopt this view.
¶33 There is no suggestion or evidence before
us from the Attorney General that fulfilling the
duty to file an initial response to a ballot title
takes more than five days. We assume that a
Secretary of State will act in good faith and
perform his or her duty and provide a copy of
ballot title to an Attorney General immediately
upon its filing. Berryman v. Bonaparte, supra. We
also assume that an Attorney General will act
in good faith and perform his or her duty and
file a timely response to any ballot title filing
with the Secretary of State. Id.
¶34 We agree with that part of the Attorney
General’s statement that the statutory role of
the Attorney General in drafting a ballot title
does not place him in the usual and ordinary
adversarial posture that occurs in a litigation
context, or provide him with a public platform
to express political views. He represents all of
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889
the People in the context of either approving a
ballot title written by others or providing one
which he authors. The purpose of a ballot title
along with the gist appearing on a signature
page is to prevent deceit and fraud in the initiative process.44 We agree with the Attorney General that he is required by statute to be made a
defendant if anyone timely objects to a proposed ballot title,45 and he must defend a ballot
title, either one prepared by a proponent which
he approved and did not alter, or one he
authored and substituted for the initial title.
His filing a response to the ballot title is an
important step in the process of the initiative to
help prevent deceit and fraud, and that filing
should not be made ineffective in the absence
of legislative intent requiring that result.
¶35 Ideally, in this limited role as a legal
advisor to the People, the Attorney General is
not merely reactive to a particular proponent of
an initiative who fails to provide him with
statutorily required notice, or merely reactive
to a particular Secretary of State who selects a
means of notice to the Attorney General that is
less than immediate. But rather, that he takes
positive action for a quick review of the ballot
title once it is filed with the Secretary of State
and he has notice of its filing. Ideally, a proponent of an initiative and a Secretary of State
would provide the Attorney General with the
types of notice which the statutes require and
the Attorney General needs. We are confident
that proponents of initiatives, the Secretary of
State, and the Attorney General will work
together in the future to avoid the procedural
issues which are a large part of this controversy.
II. Burden of Proof and Standard of Review
Proponents claim that in a ballot title
appeal the Attorney General bears the
burden of proof to show that a ballot title
proposed by Proponents did not satisfy
legal requirements.
¶36 Any person who is dissatisfied with the
wording of ballot title for an initiative petition
may bring a proceeding in this Court pursuant
to 34 O.S. § 10.46 The Attorney General is
required to “defend the ballot title from which
the appeal is taken.”47 Oklahoma Supreme
Court Rule 1.194 provides that an objection to
an initiative petition is commenced in the
Supreme Court and the controversy proceeds
in accordance with the procedures set out in
34 O.S. § 8. It further states that the proceeding shall be treated as an original action, and
890
that the parties shall be afforded a trial de
novo.48 The procedure for an appeal of a ballot
title is the same for proceedings challenging
the petition when no statutory conflict necessarily exists between the statutes for the two
types of proceedings.49
¶37 Generally, statutes on the same subject
matter are viewed in pari materia and construed
together as a harmonious whole giving effect
to each provision.50 However, we need not rely
on this principle as a rule of statutory construction because the plain language of 34 O.S. §§ 8,
9, 10 and 11 make express reference to each
other and expressly require that the statutes be
construed and applied together. For example:
B. It shall be the duty of the Secretary of
State to cause to be published, in at least one
newspaper of general circulation in the state,
a notice of such filing and the apparent sufficiency or insufficiency of the petition. Such
publication shall include the text of the ballot
title as reviewed or, if applicable, as rewritten, by
the Attorney General pursuant to the provisions
of subsection D of Section 9 of this title, and shall
include notice that any citizen or citizens of the
state may file a protest as to the constitutionality
of the petition, by a written notice to the Supreme
Court and to the proponent or proponents filing
the petition, or as to the ballot title as provided in
Section 10 of this title. Any such protest must be
filed within ten (10) days after publication. A
copy of the protest shall be filed with the Secretary of State.
34 O.S.2011 § 8(B) (emphasis added).
A. Any person who is dissatisfied with
the wording of a ballot title may, within ten
(10) days after the same is published by the
Secretary of State as provided for in subsection B of Section 8 of this title, appeal to the
Supreme Court by petition in which shall be
offered a substitute ballot title for the one from
which the appeal is taken. Upon the hearing of
such appeal, the court may correct or amend the
ballot title before the court, or accept the substitute suggested, or may draft a new one which
will conform to the provisions of Section 9 of
this title.
34 O.S.2011 § 10 (A) (emphasis added).
Notice of the appeal provided for in the
preceding section shall be served upon the
Attorney General and upon the party who
filed such ballot title, or on any of such parties, at least five (5) days before such appeal
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is heard by the court. The Attorney General
shall, and any citizen interested may,
defend the ballot title from which the
appeal is taken. Other procedure upon such
appeals shall be the same as is prescribed for
appeals from petitions filed as set forth in Section 8 of this title.
34 O.S.2011 § 11 (emphasis added).
The plain language in these statutes requires
applying them together as a whole because: (1)
§ 8 refers to the Attorney General’s ballot title
in § 9 and an appeal with reference to § 10; (2)
§ 10 refers to both §§ 8 and 9 for application of
§ 10; and (3) § 11 refers to the appeal “provided
for in the preceding section,” (i.e., § 10), and
then incorporates consistent § 8 procedure for
initiative appeals into the procedure for a ballot title appeal by using the phrase, “Other
procedure upon such appeals shall be the same
as is prescribed for appeals from petitions filed
as set forth in Section 8 of this title.” Section 9
refers to the requirements for a ballot title and
the procedure for a ballot title prepared by the
Attorney General, and it provides that if an
appeal is taken from a ballot title within the
time specified in Section 10 of this title, then
the Secretary of State shall certify to the Secretary of the State Election Board the ballot title
which is finally approved by the Supreme
Court. 34 O.S. 2011 § 9 (D) (2). These statutes
clearly and plainly provide that any person
who is dissatisfied with the ballot title may file
an appeal in this Court, the Attorney General
defends the action, the procedure for a ballot
title appeal is governed by the specific statutes
for such, and then additional consistent procedures from initiative appeals are incorporated
into ballot title appeals by 34 O.S. § 11.
¶38 Proponents argue that the Attorney General has failed to meet his burden of proof in
this proceeding. They argue that the Attorney
General must meet the burden of showing that
the ballot title proposed by Proponents is
legally insufficient. We disagree with the conclusion made by Proponents.
¶39 Generally, the party invoking a court’s
judicial discretion with a request for judicial
relief must satisfy the applicable burden for the
relief sought. A burden to present facts, claims
and legal arguments falls on the party who
asserts an entitlement to the judicial relief
sought.51 An appeal of a ballot title is prosecuted using the Court’s original jurisdiction.52 In
an original jurisdiction proceeding a petitioner
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has the burden to produce facts in support of a
claim,53 as well as a burden to present legal
issues with supporting authority.54 In the present context, the burden on Proponents is to
raise legal issues in a procedurally proper manner and show those facts in a procedurally
proper manner which are necessary to support
the legal issues Proponents raise.
¶40 When an Attorney General changes a
ballot title, the ballot title written by the Attorney General becomes the ballot title for that initiative unless the title is altered on an appeal to
this Court. The Attorney General’s ballot title is
the one “from which the appeal is taken.” 34
O.S. § 10. The party bringing an appeal shall
file a “petition in which shall be offered a substitute ballot title.” Id. In the present case, it is
the ballot title filed by the Attorney General
which is the ballot title of the initiative, unless
changed on appeal. The Court has accepted a
ballot title written by an Attorney General
when the Court could not conclude that the
text for the ballot title was “clearly contrary” to
the command of statutory law.55 We have stated, “Where the title submitted by the Attorney
General is found sufficient it is generally
approved and utilized regardless of the sufficiency of those submitted by other parties.”56
The burden is on Proponents to show that the
ballot title prepared by the Attorney General is
clearly contrary to either statutory law or the
Oklahoma Constitution.
III. The Attorney General’s Ballot Title
Proponents claim that the ballot title prepared by the Attorney General violates
statutory law and displays partiality.
¶41 Petitioners’ initially proposed ballot title,
now the substitute ballot title offered on appeal,
states as follows:
This measure amends the Oklahoma
Constitution. It adds a new section 44 to
Article 10. Bonds could be sold. Up to Five
Hundred Million Dollars ($500,000,000.00)
could be available. Bond money would be
used for school districts and career technology districts. Bond money would be used
for storm shelters or secure areas. State
franchise taxes would repay these bonds. If
money from franchise tax was not enough,
the Legislature could use the General Revenue Fund to repay the bonds. State bond
money could be used by school districts or
career technology districts to reduce local
debt or eliminate local debt incurred for
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891
storm shelters or secure areas. If enough
money from franchise tax remains after
state bonds are paid for, the balance of
franchise tax could be used for grants for
storm shelters for people and businesses.
When state bonds are paid off, additional
bonds could be sold to keep the programs
funded. Laws would be written for details
about using bond money. State agencies
could make rules about state bond money.
These rules would have the effect of law.
The Oklahoma State Constitution is being
amended to allow state bond money to pay
for shelters and secure areas in schools.
1. Shall not exceed two hundred (200)
words;
¶ 42 The current ballot title for the initiative,
the ballot title prepared by the Attorney General, states as follows:
5. Shall contain language which clearly
states that a “yes” vote is a vote in favor of
the proposition and a “no” vote is a vote
against the proposition; and
This measure adds Article 10, Section 44
to the Oklahoma Constitution. The new
section authorizes the issuance of up to 500
million dollars in State bonds. The bond
money would be used by local school districts and career technology districts for
storm shelters and campus security.
The measure does not provide for new
State revenues to pay for the bonds. Under
the measure the State franchise tax revenues would no longer go into the General
Revenue Fund, which is the primary fund
used to pay for State Government. Rather,
franchise taxes revenues would be used for
annual bond payments (principal and
interest).
In any year in which the franchise tax
revenues are not sufficient to make annual
payments, the Legislature, at its discretion,
could use General Revenue Fund monies
to make the annual bond payment.
In years in which not all the franchise
tax revenues are needed to make payments, the remaining franchise tax revenues — with Legislative approval — could
be used for storm shelter grants to individuals and businesses.
In authorizing these bond and grant programs, the measure creates exceptions to
the Constitution’s prohibitions on gifts and
the use of the state’s credit.
¶43 A ballot title has six basic requirements
set forth in 34 O.S. § 9 (B). A suggested ballot
title:
892
2. Shall explain in basic words, which can
be easily found in dictionaries of general
usage, the effect of the proposition;
3. Shall not contain any words which have
a special meaning for a particular profession or trade not commonly known to the
citizens of this state;
4. Shall not reflect partiality in its composition or contain any argument for or against
the measure;
6. Shall not contain language whereby a
“yes” vote is, in fact, a vote against the
proposition and a “no” vote is, in fact, a
vote in favor of the proposition.
34 O.S.2011 § 9 (B), in part.
¶44 Proponents’ arguments against the Attorney General’s ballot title are that it is legally
incorrect and displays partiality. In their original brief the only argument challenging the
ballot title is that it “is designed to over emphasize the franchise tax issue and under emphasize the true purpose of the Initiative which is
storm shelters and secure areas for schools and
children . . . The proposal from the Attorney
General is misleading, confusing and will not
help the average voter when he or she votes.”
Their Supplemental Brief makes the following
four arguments against the ballot title.
1. The second paragraph shows partiality
because it makes an argument against the
proposition because it states that no new
revenues are raised to pay for the bonds;
2. The second paragraph shows partiality
because it suggests potential harm to the
General Revenue Fund since it states that
the franchise tax revenue will not be deposited to that fund;
3. The second paragraph is legally incorrect
because by the time the Proposed Measure
is adopted the Legislature could direct
franchise taxes to some fund other than the
General Revenue Fund; and
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4. “The last paragraph is legally incorrect
since passage of the measure amends to
[sic] Constitution to provide for such.”
These first three arguments object to ¶ 2 of the
title which states that:
The measure does not provide for new
State revenues to pay for the bonds. Under
the measure the State franchise tax revenues would no longer go into the General
Revenue Fund, which is the primary fund
used to pay for State Government. Rather,
franchise taxes revenues would be used for
annual bond payments (principal and
interest).
¶45 Proponents object to the first sentence
and state that it reflects partiality. The sentence:
“The measure does not provide for new State
revenues to pay for the bonds” is factually correct, as the measure states that the franchise tax
in “section 1201 et seq. of Title 68” will be used
to pay the bond obligation.
¶46 During oral argument before the Court
en banc, Proponents refined this argument and
used the language in the first sentence and the
mention of “franchise tax” in more than one
place in the ballot title as evidence of partiality.
In other words, they argued that the Attorney
General overemphasized use of the franchise
tax, and it is this overemphasis which shows
partiality.
¶47 The proposed measure contains the following language.
E. The Legislature shall provide by law for
the apportionment of the revenues currently
derived from the levy of the franchise tax
imposed for the privilege of doing business
in this state as authorized pursuant to Section 1201 et seq. of Title 68 of the Oklahoma
Statutes, as amended, so that one hundred
percent (100%) of such franchise tax revenue,
or so much thereof as may be required on
an annual basis, is dedicated for the repayment of the obligations issued pursuant to
the provisions of this section.
F. The Legislature may provide by law for
the use of revenues derived from the levy of
franchise tax which are not required for
repayment of obligations issued pursuant to
the provisions of this section in order to provide a grant program for construction of
storm shelters for individuals and business
entities. Such program shall be administered
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by the Office of Emergency Management or
its successor. The use of franchise tax revenues
for storm shelters as authorized by this subsection shall be deemed in furtherance of a
public purpose and shall not be deemed a
gift of state tax revenues.
G. If the revenues described by subsection E of
this section are insufficient to repay the
obligations pursuant to the provisions of
this section, the Legislature may use monies in the General Revenue Fund of the
state not otherwise obligated, committed
or appropriated in order to ensure the
repayment of such obligations.
Two paragraphs of this proposed measure
expressly refer to the franchise tax and one
refers to “the revenues” which is a reference to
revenue from the franchise tax. A ballot title
shall explain the effect of a proposition. 34 O.S.
§ 9 (B) (2). We may summarize the effect of
these paragraphs and enumerate the references
in the measure to franchise tax revenue as follows:
In paragraph “E”
(1) The Legislature shall provide by a legislative apportionment that 100% (or so much
as is needed) of the franchise tax revenue is
dedicated to repayment of certain obligations.
In paragraph “F”
(2) The Legislature may use amounts from
the franchise tax revenue that are not necessary for repayment of certain obligations
for a grant program for construction of
storm shelters for individuals and business
entities.
(3) The use of franchise tax revenues for
storm shelters as authorized by this subsection shall be deemed in furtherance of a
public purpose and shall not be deemed a
gift of state tax revenues.
In paragraph “G”
(4) If the revenues described by subsection E of
this section [i.e., franchise tax revenues] are
insufficient to repay the obligations pursuant to the provisions of this section, the
Legislature may use monies in the General
Revenue Fund . . . .
In the proposed measure there are three express
references to the franchise tax revenue and one
grammatical reference, or a total of four refer-
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893
ences. In the Attorney General’s ballot title
there are five references to the franchise tax
revenue that are used to explain the four references we have identified in the proposed measure. We also note that the phrase “franchise
tax(es)” expressly appears four times in Proponent’s proposed ballot title.
¶48 The difference of one reference is attributed to the sentence in the Attorney General’s
ballot title which states that “Under the measure State franchise tax revenues would no
longer go into the General Revenue Fund,
which is the primary fund used to pay for State
Government.” The proposed measure does
refer to the General Revenue Fund in paragraph “G” of the measure but without giving a
definition for “General Revenue Fund.” This
reference to the Fund in the proposed measure,
as well as the express reference to the Fund in
Proponent’s substitute title, are not references
to the franchise tax revenue going into the
Fund prior to an enactment of the measure.
¶49 In one case we stated that a single sentence may express partiality and be argumentative, if when explaining a proposed measure
it also includes what other states have done or
might do with a proposal similar to that to be
voted on by the citizens in Oklahoma.57 For the
purpose of examining partiality in a ballot title,
we noted the difference between a ballot title
stating what other States might do and what
the proposed Oklahoma measure would do
under then current law.58 In this circumstance,
the possibility of what voters in other states
would do was considered to be beyond the
legal effect or legal scope of the proposed measure; i.e., it amounted to a policy argument and
not a statement of a legal effect created by the
enactment of the proposed measure.
¶50 A similar issue arose in another case
where we discussed legal effect and noted that
a portion of a ballot title was misleading. The
misleading nature of language in the title was
not because the title expressed something as a
legal effect when it was a contingency, but
because the title did not explain the correlation
between the contingency and the legal effect of
the measure.59
¶51 Current law states that the franchise tax
shall be deposited into the General Revenue
Fund.60 Proponents do not dispute that the General Revenue Fund is the primary fund used to
pay for state government.61 While the measure
does not state that the current franchise tax is
894
paid into the General Revenue Fund, and the
measure does not define “General Revenue
Fund,” one effect from the proposed measure is
clearly to change the franchise tax revenue from
deposit into the Fund to a dedicated purpose of
funding the construction of storm shelters. Proponents argue that “[w]here the revenue of the
franchise tax is currently being deposited is irrelevant and has no impact as to the legal correctness of the ballot title as it does not matter where
such revenue is deposited since the petition
would direct that the revenue from the franchise tax be used to repay the bond debt.” Section 9(B) expressly states that the ballot title:
“Shall explain in basic words, which can be
easily found in dictionaries of general usage,
the effect of the proposition.” 34 O.S. § 9(B)(2).
Since (1) the franchise tax is currently being
collected and being used for one use (deposited
in the General Revenue Fund) and the measure
states a new use for the tax (to pay for bonds),
and (2) one purpose of a ballot title is to explain
the effect of a proposed measure with reference
to current law, the Attorney General did not
impermissibly explain that funds currently
being deposited in one fund will be used for a
different purpose. We do not find the one additional reference to the franchise tax and the
definition of the General Revenue Fund to be
argumentative or displaying partiality.
¶52 A ballot title shall not exceed two hundred words, 34 O.S. § 9(B)(1). We do not view
the use of five references to the franchise tax as
opposed to four to be excessive to the point of
displaying partiality when the Attorney General is attempting to summarize a measure in
less than two hundred words and uses grammatical shortcuts to achieve this goal.
¶53 Stating that funds currently deposited in
one fund will be used for a different purpose
does not, by itself, state that a “harm” will
occur to that fund. The claim that the title is
contrary to law because the Legislature could
change the state fund where franchise taxes are
deposited, or change their use prior to a vote
on the proposed measure, is a claim simply
without merit. The ballot title is required to
state its effect on current law. While it is certainly possible that a Legislature could create a
law with an effective date sufficiently in the
future so as to have an impact upon an initiative petition, Proponents have pointed to no
law which has been created for a future effective date that would alter the proposed measure’s legal effect.
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Vol. 85 — No. 12 — 4/19/2014
¶54 Proponents object to the last paragraph
of the Attorney General’s ballot title and argue
that it is legally incorrect. The last paragraph
states: “In authorizing these bond and grant
programs, the measure creates exceptions to
the Constitution’s prohibitions on gifts and the
use of the state’s credit.” Their objection is that
passage of the measure itself provides for
amending the Constitution.
¶ 55 We note that while Proponents’ substitute title does not mention gifts or the state’s
credit, the proposed measure states in paragraph “F” that the use of the franchise tax for
the storm shelters as authorized by this subsection “ . . . shall not be deemed a gift of state tax
revenues” and in paragraph “M” the measure
states that:
The proceeds from the sale of obligations issued pursuant to the provisions of
this section may be made available to any
common school district or any career technology district for the purposes authorized
by this section and enabling legislation
enacted pursuant to this section notwithstanding any other provision of the Oklahoma Constitution that would otherwise
prohibit or restrict the use of such proceeds
or the use of tax revenue for the repayment
of principal, interest, reserves, issuing costs
or other costs related to the sale of the obligations authorized by this section. Any
provision of the Oklahoma Constitution
that would otherwise restrict the use of tax
revenues for repayment of the obligations
or in any way restrict the operation of the
provisions of this section shall be deemed
to have been amended in order to remove
any such restrictions.
Proponents argue that the proposed measure
states that the Constitution “is amended,” and
their substitute ballot title states that “The
Oklahoma State Constitution is being amended
to allow state bond money to pay for shelters
and secure areas in schools.” The Attorney
General argues that while bond money is to be
used to pay for shelters, the proposed measure
also enacts a means or method for attaining
this goal or ultimate purpose, and that means
is achieved by amending the Constitution and
creating exceptions to the Constitution’s prohibitions on gifts and the use of the state’s credit.
Proponents’ have not demonstrated that the
Attorney General has incorrectly stated the
legal effect of the measure on this point.
Vol. 85 — No. 12 — 4/19/2014
¶56 Proponents also argue that the Attorney
General makes a claim that “there may not be
any funds available to pay the bond holders,”
and Proponents argue that the statement “ . . .
is false, so this false statement is irrelevant to
the legal correctness of the ballot title as submitted by the Petitioners.” The Attorney General’s ballot title does not contain this language.
The actual statement in the ballot title is: “In
any year in which the franchise tax revenues
are not sufficient to make annual payments,
the Legislature, at its discretion, could use General Revenue Fund monies to make the annual
bond payment.” The actual statement in the
proposed measure states that:
G. If the revenues described by subsection
E of this section are insufficient to repay the
obligations issued pursuant to the provisions of this section, the Legislature may
use monies in the General Revenue Fund
of the state not otherwise obligated, committed or appropriated in order to ensure
the repayment of such obligations.
The language in the Attorney General’s ballot
title summarizes this language in the proposed
measure and is not misleading.
¶57 Proponents argue that the Attorney General’s ballot title creates doubt whether the
Legislature is required to repay the bond obligations. Again the actual provision of the
Attorney General’s ballot title states that: “In
any year in which the franchise tax revenues
are not sufficient to make annual payments,
the Legislature, at its discretion, could use General Revenue Fund monies to make the annual
bond payment.” Again, this language summarizes paragraph “G” of the measure and is not
misleading. The Attorney General correctly
indicates that the Legislature could use funds
from the General Revenue Fund or from another source to repay the bond obligations. Paragraph “G” of the proposed measure states that
“ . . . the Legislature may use monies in the
General Revenue Fund of the state . . . .”
(emphasis added). The Attorney General’s ballot title language is not a false statement.
¶58 Proponents state that the ballot title
reflects partiality because it states that franchise taxes will not be paid into the General
Revenue Fund. The substitute ballot title by
Proponents discusses a relationship between the
franchise tax and the General Revenue Fund:
“If money from franchise tax was not enough,
the Legislature could use the General Revenue
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895
Fund to repay the bonds.” Proponents challenge the meaning of language on a point which
they have in their substitute ballot. The Attorney General’s language explains the effect of
the proposition, and under current law, is factually correct. This objection is without merit.
¶59 If the Attorney General’s text for the ballot title is not “clearly contrary” to the command of statutory law, then his ballot title is
accepted and the Court need not examine Petitioners’ substitute ballot. A ballot title must
reflect the character and purpose of the measure and it must not be deceptive or misleading, and it must also be free from uncertainty
and ambiguity.62 We have stated that: “The test
is whether the title is couched in such a way
that voters are afforded an opportunity to fairly
express their will, and whether the question is
sufficiently definite to apprise voters with substantial accuracy what they are asked to
approve.”63
¶60 Nothing in Proponents’ arguments show
where the Attorney General’s ballot title fails to
state the legal effect of the proposed measure
under current law. Further, we conclude that
the Attorney General’s proposed ballot title fulfills the requirements of 34 O.S.2001 § 9, because
it accurately reflects the effects of the proposed
amendment to the State Constitution by informing the electorate concerning the principle thrust
of the proposition; i.e., to fund the construction
of storm shelters by using franchise tax revenues, bonds, and other resources within the discretion of the Legislature.
IV. Request for Time to Collect Signatures
Proponents request additional time to collect signatures, or in the alternative a new
ninety-day period to collect signatures.
¶61 In their Supplemental Brief, Proponents
cite 34 O.S. § 8(E) and request an additional
ninety (90) days to collect signatures, and they
make a more developed argument in their
Reply Brief where they rely upon In re Initiative
Petition No. 315, State Question No. 553, 1982 OK
15, 649 P.2d 545, 553 and 34 O.S. § 9 (D) and a
former version of 34 O.S. § 8.
¶62 In re Initiative Petition No. 315, supra,
states that “The 90-day period for circulation
does not begin until the proposed title has been
reviewed by the Attorney General, the 10-day
appeal period has expired, and any appeals
timely filed, exhausted.” 649 P.2d at 553. The
Attorney General argues that: (1) When In re
896
Initiative Petition No. 315, State Question No. 553,
supra, was decided the ballot title was part of the
petition that was submitted to the Attorney
General, (2) The ballot title is no longer part of
the petition submitted to the Attorney General,
and (3) The language in In re Initiative Petition
No. 315, is no longer good law on this point.
¶63 The Attorney General’s argument may
be summarized as stating that the correctness
of a ballot title need not be settled prior to collection of signatures because (1) the ballot title
is not part of the petition when it is submitted
to the Attorney General, (2) §§ 9 & 10 do not
expressly delay collecting signatures until after
a ballot title appeal has been settled, and (3) the
petition and the gist of the measure on the signature page sufficiently inform the voters of
the proposed measure.
¶64 Three bodies of text must be identified:
(1) the petition, (2) the gist of the petition which
appears on a signature page, and (3) the ballot
title, which may, or may not be part of the petition for certain purposes (as we hold today).
We have explained that both the gist and the
ballot title work together to prevent fraud in
the initiative process.64 A petition has “an exact
copy of the title and text of the measure
inserted.”65 The petition and signature sheets
together make a pamphlet, and each signature
sheet is attached to a copy of the petition and
has a gist of the measure on each signature
page.66 If “the title” referred to in § 2 that is to be
included as part of the circulated petition is not
the correct “ballot title,” and the correct ballot
title need not be included on the circulated petition pamphlet, as indicated by the Attorney
General, then one purpose of a ballot title in
limiting fraud, deceit, and corruption in the initiative process would be severely limited.
¶65 The Attorney General correctly observes
that the ballot title is treated as separate from
the initiative petition in 34 O.S. § 9. The ballot
title is also treated as part of the petition in 34
O.S. § 2. Giving effect to both of these provisions means that the ballot title is not part of
the petition for the purpose of a ballot title
appeal, but a ballot title is part of the initiative
petition in 34 O.S. § 2, and thus part of the petition that is duplicated for securing signatures
in 34 O.S. § 3.
¶66 Section 9(D)(1) clearly provides for filing
the ballot title with the Secretary of State prior
to collecting signatures. If an appeal is taken
from the ballot title, then the Secretary of State
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Vol. 85 — No. 12 — 4/19/2014
certifies to the Secretary of the State Election
Board the ballot title that is “finally approved
by the Supreme Court.” 34 O.S. § 9(D)(2).
¶67 Section 8(E) provides in part that:
E. Within ninety (90) days after such filing
of an initiative petition or determination of
the sufficiency of the petition by the Supreme
Court as provided in this section, whichever
is later, the signed copies thereof shall be
filed with the Secretary of State, . . . .
34 O.S.2011 § 8(E), in part, emphasis added.
Proponents argue that “sufficiency of the petition” should include determination of a proper
ballot title. While we agree that § 8(E) applies
to a ballot title appeal and that the 90-day
period to collect signatures commences after
the ballot title appeal, our reasons are not those
of Proponents.
¶68 The Attorney General is correct that the
statutory scheme distinguishes a protest challenging the sufficiency of a petition from a
protest (or appeal) of the ballot title, and this
distinction is expressly made in § 8(B) where
the separate authority for an appeal of the ballot title in § 10 is noted.67
. . . notice [shall include] that any citizen or
citizens of the state may file a protest as to
the constitutionality of the petition, by a written notice to the Supreme Court and to the
proponent or proponents filing the petition, or as to the ballot title as provided by Section 10 of this title. . . .
34 O.S.2011 § 8(B), in part, and emphasis
added.
The Attorney General also argues that a “petition” does not include the ballot title, because a
“ballot title” is submitted on a separate piece of
paper “and shall not be deemed part of the
petition.” 34 O.S.2011 § 9(B).68 Two responses to
this argument by the Attorney General are necessary. First, even with a statutory distinction
between appeals on a ballot title and appeals
on the legal sufficiency of a petition, one statute for a ballot title appeal states that the procedures which are part of a 34 O.S. § 8 appeal on
a petition are also applicable to a ballot title
appeal.
Notice of the appeal provided for in the
preceding section shall be served upon the
Attorney General and upon the party who
filed such ballot title, or on any of such parVol. 85 — No. 12 — 4/19/2014
ties, at least five (5) days before such appeal
is heard by the court. The Attorney General
shall, and any citizen interested may,
defend the ballot title from which the
appeal is taken. Other procedure upon such
appeals shall be the same as is prescribed for
appeals from petitions filed as set forth in Section 8 of this title.
34 O.S.2011 § 11, emphasis added.
The procedure in § 8(E)69 states that signatures
will not be collected until after a protest to a
petition is finally determined. There is no
express provision in the ballot title statutes for
the ninety-day signature collection period as
occurring either during or after a ballot title
appeal. We thus hold that § 8(E) procedure for
collecting signatures in a ninety-day period at
the conclusion of a protest to a petition is also
applicable to a ballot title appeal.
¶69 We also note that the Attorney General
correctly identifies three types of legal proceedings involving initiative petitions: (1) protest to the constitutionality of the petition [§ 8
(B) proceeding], (2) protest to the ballot title [§§
8(B) & 10 proceeding], and (3) an objection to
the signature count [§ 8(H) proceeding]. The
approach to these proceedings taken by the
Attorney General would result in different
times to commence collecting signatures based
upon whether a protest to a petition was combined with a ballot title protest. According to
the Attorney General, if only a ballot title protest is filed, then the 90-day period is not stayed
pending resolution of the ballot title appeal.
On the other hand, if a protest to the petition is
combined with a ballot title protest, then the
90-day period does not commence until the protest to the petition is determined, which may or
may not be the same date the Court decides the
ballot title appeal; but in any event the date of
any judicial decision(s) for commencing the
ninety-day period would be different than for a
ballot title. The last sentence of 34 O.S. § 11
requires more uniformity in procedure than that
suggested by the Attorney General. The second
response we have to the argument by the Attorney General is that the ballot title, that is the
correct ballot title, must be part of the petition
which in turn is part of the circulated pamphlet.70 A correct ballot title on the face of the
initiative petition which is used during collection of signatures helps to prevent fraud and
deceit in the initiative process.
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¶70 A proponent has ninety days to collect
signatures and file them with the Secretary of
State. 34 O.S. § 8(E), and 34 O.S.2011 § 4.71 The
Attorney General is correct that a proponent
gets only one 90-day period to collect signatures. Because of 34 O.S. §§ 2, 3, 8(E) and 11, the
ninety-day period commences or begins for Proponents herein in accordance with our holding
in In re Initiative Petition No. 315, supra, where
we stated that when a ballot title appeal has
occurred the time to collect signatures does not
begin until completion of that appeal. Id. 649 P.2d
at 553.
V. Conclusion and Rehearing
¶71 We hold that: 1. A proponent of an initiative petition must file or submit a copy of the
initiative petition and a copy of the ballot title
to the Attorney General when the proponent
files the initiative petition and ballot title with
the Secretary of State, 34 O.S. § 9 (A) & (B); 2.
The Attorney General must file a response to a
ballot title within five business days from the
date the ballot title is filed with the Secretary of
State, 34 O.S. § 9 (D); 3. The Attorney General’s
§ 9(D) response to a ballot title is statutorily
effective although the Attorney General’s
response was filed two days late; 4. A proponent of an initiative who challenges a ballot
title prepared by the Attorney General has the
burden to show that the Attorney General’s
ballot title is legally incorrect, or is not impartial, or fails to accurately reflect the effects of
the proposed initiative; 5. The Attorney General’s ballot title challenged in this proceeding
is legally correct, impartial, and accurately
reflects the effects of the proposed initiative; 6.
When a ballot title appeal has been made, a
proponent’s ninety-day period of time to collect signatures commences when the ballot title
appeal is final.
¶72 Should any party file a petition for
rehearing, it must be filed within five business
days from the date this opinion is filed with the
Clerk of this Court.72 The first day of this fiveday period is the first business day occurring
immediately after this opinion is filed with the
Clerk. Any party may file a response to a petition for rehearing and a response to a petition
for rehearing may be filed within eight (8) business days after the date this opinion is filed
with the clerk of this Court. The time limits to file
a petition for rehearing and response shall not be
extended. If no petition for rehearing is filed
within five business days from the date this
opinion is filed with the Clerk of this Court,
898
then the opinion shall be final on the sixth business day after the opinion is filed with the
Clerk. If any rehearing petition is timely filed
within the five-day period, then the opinion
shall not become final until all requests for
rehearing are adjudicated.
¶73 CONCUR: REIF, V.C.J., KAUGER, WATT,
WINCHESTER, EDMONDSON, TAYLOR,
COMBS, GURICH, JJ.
¶74 NOT VOTING: COLBERT, C. J.
EDMONDSON, J.
1. W. R. Allison Enters., Inc. v. CompSource Okla., 2013 OK 24, ¶ 15,
301 P.3d 407, 411. The plain meaning of a statute’s language is conclusive except in the rare case when literal construction produces a result
demonstrably at odds with legislative intent. Head v. McCracken, 2004
OK 84, ¶ 13, 102 P.3d 670, 680.
2. State ex rel. Bd. of Regents of Univ. of Oklahoma v. Lucas, 2013 OK
14, ¶ 15, 297 P.3d 378, 387 (“If wording in a statute is plain, clear and
unambiguous then the plain meaning of the words used must be judicially accepted as expressing the intent of the Legislature, and there
exists no reason or justification to use interpretive devices or rules of
construction to determine meaning.”); Cline v. Oklahoma Coalition for
Reproductive Justice, 2013 OK 93, ¶ 14, 313 P.3d 253, 258-259 (to determine the meaning of legislation we look to the plain language of the
statute because the Legislature is presumed to have expressed its
intent in the text of the statute; and only when the legislative intent
cannot be ascertained from the statutory language in cases of ambiguity or conflict do we utilize rules of statutory construction); Rogers v.
Quicktrip Corp., 2010 OK 3, ¶ 11, 230 P.3d 853, 859 (“If a statute is plain
and unambiguous, it will not be subjected to judicial construction but
will receive the interpretation and effect its language dictates.”).
3. In the Matter of J.L.M., 2005 OK 15, ¶ 5, 109 P.3d 336, 338.
4. Colclasure v. Colclasure, 2012 OK 97, ¶ 10, 295 P.3d 1123, 1135
(“The courts decide, as a matter of law, whether a contract provision is
ambiguous.”).
5. In the context of construing a statute we stated that whether
language is ambiguous is a question of law, and we relied upon a
similar statement applied to an insurance policy and the application of
contract law. YDF, Inc. v. Schlumar, Inc., 2006 OK 32, ¶ 6, 136 P.3d 656,
658, citing American Economy Ins. Co. v. Bogdahn, 2004 OK 9 ¶ 11, 89 P.3d
1051, 1054.
One reason YDF, Inc., supra, is correct is that a court’s interpretation
of statutory law presents a question of law. Troxell v. Okla. Dept. of
Human Services, 2013 OK 100, ¶ 4, 318 P.2d 206. See Hogg v. Okla. Cnty.
Juvenile Bureau, 2012 OK 107, ¶ 7, 292 P.3d 29, 33 (“ Ascertaining the
meaning of statutory language is a pure issue of law.”); In re De-Annexation of Certain Real Property from City of Seminole, 2004 OK 60, ¶ 18, 102
P.3d 120, 129 (“Statutory construction presents a question of law.”). An
interpretation of ambiguity solely from the statutory language is thus
an interpretation of statutory law and presents an issue of law.
6. In a general sense, a court’s adjudication of “reasonableness”
may present an issue of fact, or an issue of law, or a mixed question of
law and fact, depending upon how the concept of “reasonable” or
“reasonableness” is applied for the type of adjudication at issue. See,
e.g., Franco-American Charolaise, Ltd. v. Okla. Water Resources Bd., 1990
OK 44, 855 P.2d 568, 574-575 (discussion of the reasonableness of water
use by a riparian owner and the conclusion that the issue was for a
jury); Barringer v. Baptist Healthcare of Oklahoma, 2001 OK 29, ¶¶ 6, 26,
22 P.3d 695, 697, 701 (an example of determinations of “reasonableness” in the context of summary judgment review, and whether one, or
more than one reasonable interpretation of undisputed facts is present). In this original jurisdiction matter we are asked to adjudicate the
meaning of statutory language and not the existence of extrinsic facts.
7. United Airlines, Inc. v. State Bd. of Equalization, 1990 OK 29, 789
P.2d 1305, 1311-1312.
8. United Airlines, Inc. v. State Bd. of Equalization, 1990 OK 29, 789
P.2d at 1311-1312.
9. Austin, Nichols & Co. v. Okla. Cnty. Bd. of Tax-Roll Corrections, 1978
OK 65, 578 P.2d 1200, 1203.
10. Okla. Public Employees Ass’n v. State ex rel. Okla. Office of Personnel Management, 2011 OK 68, ¶ 24, 267 P.3d 838, 847.
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11. The Court takes judicial notice of promulgated state agency
rules. Lone Star Helicopters, Inc., v. State, 1990 OK 111, 800 P.2d 235, 237
(citing 75 O.S. § 252, which now states, in part, that “ All courts, boards,
commissions, agencies, authorities, instrumentalities, and officers of
the State of Oklahoma shall take judicial or official notice of any rule,
amendment, revision, or revocation of an existing rule promulgated
pursuant to the provisions of the Administrative Procedures Act.”).
12. The record of facts before us fails to show a consistent and continual construction of the statute in a public manner by the Attorney
General that is consistent with the Attorney General’s argument. Generally, argument of counsel is not a form of evidence. In re Guardianship
of Stanfield, 2012 OK 8, n. 55, 276 P.3d 989, 1002 (unsworn statements by
counsel do not constitute evidence); Willis v. Sequoyah House, Inc., 2008
OK 87, ¶¶ 12-13, 194 P.3d 1285, 1289-1290 (same). Also generally, proof
consists in forms of testimony, deposition, affidavit, and other “acceptable evidentiary substitutes.” Willis, 2008 OK 87, at n. 14. A ballot title
appeal is prosecuted in this Court in the form of an original jurisdiction
proceeding where the parties submit proof in support of their legal arguments, and they do not rely upon a record transmitted from a lower tribunal. While the Attorney General may have consistently and continually construed the statute as counsel states, proof of such a construction
by the Attorney General is absent from the record before us.
13. We have explained, “Administrative construction cannot override the plain language of a statute. Where a statute is neither ambiguous nor of doubtful meaning, the rule that weight is to be given to an
agency construction in determining the effect of the statute will not be
applied.” Bradshaw v. Oklahoma State Election Bd., 2004 OK 69, ¶ 6, 98
P.3d 1092, 1094.
14. The construction of an ambiguous and uncertain statute by a
state agency must also be reasonable for a court to give the construction deference and great weight. Oral Roberts Univ. v. Okla. Tax Comm’n,
1985 OK 97, 714 P.2d 1013, 1015. See Independent Finance Institute v.
Clark, 1999 OK 43, ¶ 13, 990 P.2d 845, 851 (deference given to the construction of a statute made by an agency charged with its enforcement
is a rule of construction for ambiguous statutory language, and the
deference is based upon an agency construction that is reasonable and
not clearly wrong).
15. In R. R. Tway, Inc. v. Oklahoma Tax Comm’n, 1995 OK 129, n. 3,
910 P.2d 972, 976, we declined to give judicial deference to an agency’s
construction of a state statute. We observed that there was no evidence
in the record showing the agency’s consistent and continual construction of the statute by a published agency rule, or that the agency had
construed the statute in some other manner that would give notice to
the Legislature of the agency’s actions.
16. 34 O.S.Supp.1993 (D) (1) stated that:
“Within five (5) business days after the filing of such copy and ballot title with the Attorney General, he shall, in writing, notify the Secretary of State whether or nor not the proposed ballot title is in legal
form and harmony with the law. If the proposed ballot title is in harmony with the law the Attorney General shall so certify to the Secretary of State. Should such ballot title not be in proper form, in the
opinion of the Attorney General, it shall be his duty, within ten (10)
business days of determining that the proposed ballot title is not in
proper form, to prepare and file a ballot title which does conform to the
law; and…”
17. Laws 1994, c. § 147, § 3, amending 34 O. S. Supp.1993 § 9, eff.
May 3, 1994.
18. Laws 1994, c. § 147, § 3, amending 34 O. S. Supp.1993 § 9, eff.
May 3, 1994, emphasis added.
19. Although doubt as to the meaning of a statute may be resolved
by reference to its enacted history, Independent Finance Institute v. Clark,
1999 OK 43, ¶ 14, 990 P.2d at 851, our observation on the legislative
history is not for the purpose of resolving doubt of concerning ambiguous language, but for the purpose of showing that the language
which altered the time for calculating the Attorney General’s duty to
file a response to a ballot title is a plain and ordinary reading of the
language and that the Attorney General’s construction is not a reasonable alternative.
20. Berryman v. Bonaparte, 1932 OK 141, 11 P.2d 164, 167-168 (“A
mere presumption of law applies only in the absence of evidence as to
the fact, and flies out of the case upon the production of any evidence,
but the presumption that public officials perform their duties casts the
burden of proof upon the issue. We call attention to these matters in
order that the learned counsel may not in the future become confused
relative to general legal presumptions and the presumptions of law
relative to public officials.”). See also, State ex rel. Okla. Corp. Com’n v.
McPherson, 2010 OK 31, ¶ 28, 232 P.3d 458, 465 (“But because of the
presumption that officials will take proper actions subsequent to a
demand letter, the taxpayer’s [qui tam] interest does not come into
being until the taxpayer shows that officials failed to take the proper
actions after receiving the demand letter.”); State ex rel. Haning v.
Vol. 85 — No. 12 — 4/19/2014
Department of Public Welfare, 1952 OK 229, 245 P.2d 452, 455 (“The rule
is well settled in this jurisdiction that in considering an action in mandamus against such public officials this court may exercise its judicial
discretion in granting or denying the writ, and may in a proper case
withhold the writ in anticipation of good faith performance of the
declared statutory duty.”).
21. 25 O.S. 2011 § 23:
“The word ‘year’ means a calendar year, and ‘month,’ a calendar
month. Fractions of a year are to be computed by the number of
months, thus: half a year is six (6) months. Fractions of a day are to be
disregarded in computations which include more than one (1) day, and
involve no question of priority.”
22. 25 O.S. Supp. 2012 § 82.1 states in part:
“A. The designation and dates of holidays in Oklahoma shall be as
follows: Each Saturday, Sunday, New Year’s Day on the 1st day of
January, Martin Luther King, Jr.’s Birthday on the third Monday in
January, . . . .”
“C. Any act authorized, required, or permitted to be performed on
a holiday as designated in subsection A of this section may be performed on the next succeeding business day, and no liability or loss of
rights of any kind shall result from such delay. . . . “
23. 34 O.S.2001 § 9(D)(1) states in part:
After the filing of the petition and prior to the gathering of signatures thereon, the Secretary of State shall submit the proposed ballot
title to the Attorney General for review as to legal correctness. Within
five (5) business days after the filing of the measure and ballot title, the
Attorney General shall, in writing, notify the Secretary of State whether or not the proposed ballot title complies with applicable laws.
24. 34 O.S. § 9(D)(1) states in part: “The Attorney General shall
state with specificity any and all defects found and, if necessary,
within ten (10) business days of determining that the proposed ballot
title is defective, prepare and file a ballot title which complies with the
law; . . . .”
25. The argument made by Proponents has some similarities to one
we rejected in State ex rel. Oklahoma Bar Ass’n v. Mothershed, 2011 OK 84,
264 P.3d 1197. In Mothershed a party argued that failure to follow the
“shall” language requiring an act of a public official/public body
within a certain time divested that public body of jurisdiction to act. In
the present case, Proponents argue that a public official’s failure to
observe a statutory time requirement has divested that official of jurisdiction to act. We explained in Mothershed that there was no legislative
intent to create a jurisdictional time limit in a particular rule for Bar
disciplinary procedure (at ¶ 62, 264 P.3d at 1221), and herein we similarly note that there is no legislative language or intent indicated by the
plain language in 34 O.S. § 9 to remove the Attorney General from the
ballot title procedure by an untimely filing made by the Attorney General.
26. We note that School District No. 61, Payne County, supra, is consistent with Castro v. Keyes, 1992 OK 92, 836 P.2d 1275, where parties
argued that a county board of equalization lacked jurisdiction to adjudicate a timely filed taxpayer protest when the adjudication came after
the statutory date for adjournment for the board. This Court rejected
that argument and we reaffirmed the holding of Castro in both George
L. Verity Management Development Corp. v. Keyes, 1992 OK 93, 836 P.2d
1279, and Oklahoma City Golf and Country Club v. Keyes, 1992 OK 94, 836
P.2d 1282. See Larry Jones Intern. Ministries, Inc. v. Means, 1997 OK 125,
¶ 7, 946 P.2d 669, 671.
27. State ex rel. Oklahoma Bar Ass’n v. Mothershed, 2011 OK 84, ¶ 54, &
nn. 59-63, & ¶ 62, 264 P.3d 1197, 1217, 1221. See also Baugh v. Little, 1929
OK 383, 282 P. 459, 460 (“It is well established, as a general rule, that
jurisdiction once acquired is not defeated by subsequent events, . . . .”).
28. The nature of this time limit in 34 O.S.2001 §4 and whether it is
mandatory is not before us in the present controversy. It is noted
merely to show an example of the Legislature restricting a filing after
a certain date.
29. See, e.g., McCathern v. City of Oklahoma City, 2004 61, ¶ 17, 95
P.3d 1090, 1097 (“We will not abridge governmental tort responsibility
by legislative text that is ambiguous or silent.”); Satellite Sys., Inc. v.
Birch Telecom of Oklahoma, Inc., 2002 OK 61, ¶ 7, 51 P.3d 585, 588 (A
legislative intention to abolish a common law right must be clearly and
plainly expressed and there is a presumption that favors preservation
of common-law rights).
30. Matter of Estate of Speake, 1987 OK 61, 743 P.2d 648, 652.
31. In re Initiative Petition No. 315, State Question No. 553, 1982 OK
15, 649 P.2d 545, 553 (“when questions of a general public nature are
involved, which affect the state at large, the people of the state become
indirect parties and their interests must be protected to prevent a possible ‘practical injustice’ even if the person who might have objected is
silent.”); State ex rel. Freeling v. Lyon, 1917 OK 229, 165 P. 419, 420 (A
matter that affects the rights of the citizens of the State is publici juris.);
Ethics Commission v. Cullison, 1993 OK 37, 850 P.2d 1069, 1073 (An
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899
adjective-law barrier in a private-law original jurisdiction action will
not hinder the court from giving adequate relief in an original jurisdiction proceeding that is publici juris.).
32. When the parties’ briefs present a publici juris issue and no
additional facts are necessary for its adjudication, the Court possesses
the judicial discretion to determine an issue of law presented by those
briefs. State v. Torres, 2004 OK 12, ¶ 7, 87 P.3d 572, 578; City of Enid v.
Public Employees Relations Bd., 2006 OK 16, ¶ 30 133 P.3d 281,299-300
(Edmondson, J., Concurring).
33. Terry v. Bishop, 2007 OK 29, ¶ 9, 158 P.3d 1067, 1070-1071.
34 Okla. Const. Art. 5 § 1:
“The Legislative authority of the State shall be vested in a Legislature, consisting of a Senate and a House of Representatives; but the
people reserve to themselves the power to propose laws and amendments to the Constitution and to enact or reject the same at the polls
independent of the Legislature, and also reserve power at their own
option to approve or reject at the polls any act of the Legislature.”
35. In re Initiative Petition No. 384, State Question No. 731, 2007 OK
48, ¶ 2, 164 P.3d 125, 126.
36. Okla. Const. Art. 5 § 3 states in part: “The Legislature shall
make suitable provisions for carrying into effect the provisions of this
article.”
37. In re Initiative Petition No. 379, State Question No. 726, 2006 OK
89, ¶ 17,155 P.3d 32, 40.
38. Gulfstream Petroleum Corp. v. Layden, 1981 OK 56, 632 P.2d 376,
379 (principle applied to whether entry of a spacing order was a mere
procedural step or a mandatory jurisdictional step in the process of
entering a pooling order).
39. U.C. Leasing, Inc. v. State ex rel. State Bd. of Public Affairs, 1987 OK
43, 737 P.2d 1191, 1196.
40. Chandler U.S.A., Inc. v. Tyree, 2004 OK 16, ¶ 24, 87 P.3d 598, 604
(“A typical case for mandamus has five elements: (1) The party seeking
the writ has no plain and adequate remedy in the ordinary course of
the law, (2) The party seeking the writ possesses a clear legal right to
the relief sought, (3) The respondent (defendant) has a plain legal duty
regarding the relief sought, (4) The respondent has refused to perform
that duty, and (5) The respondent’s duty does not involve the exercise
of discretion.”); In the Matter of B.C., 1988 OK 4, 749 P.2d 542, 544 (Mandamus will not usually control the substantive content of an official’s
decision within the discretion of that official in the performance of a
duty. But when the duty requires an exercise of discretion and the
official has not performed, mandamus will issue to require the official
to actually exercise the required discretionary act.).
41. 34 O.S.2011 § 24: “The procedure herein prescribed is not mandatory, but if substantially followed will be sufficient. If the end aimed
at can be attained and procedure shall be sustained, clerical and mere
technical errors shall be disregarded.”
42. Cf. City of Tulsa v. Whittenhall, 1929 OK 122, 282 P. 322 (notice of
claim filed on thirty-first day was in substantial compliance with
requirement for notice within thirty days because plaintiff was unable
to provide notice within the thirty-day period).
43 See the discussion and application of a substantial compliance
standard in Henderson v. Maley, 1991 OK 8, 806 P.2d 626, as to both (1)
the issues in that controversy and (2) the standard applied in a prohibition proceeding, Looney v. County Election Board of Seminole County,
1930 OK 461, 293 P. 1056. Henderson, 806 P.2d at 630, 632.
44. In re Initiative Petition No. 363, State Question No. 672, 1996 OK
122, 927 P.2d 558, 567 (The terms of § 3 require that the petition contain
a simple statement of the gist of the proposition, which is in contrast to §
9 which provides that the ballot title, in no more than 150 words, explain
the effect of the proposition: “The purpose of these two statutes is to
prevent fraud, deceit or corruption in the initiative process.”).
45. 34 O.S.2011 § 11 quoted infra at ¶ 37.
46. See 34 O.S.2011 § 10 (A) quoted infra at ¶ 37.
47. See 34 O.S.2011 § 11 quoted infra at ¶ 37.
48. Oklahoma Supreme Court Rule 1.194:
“Proceedings to protest or to object to initiative and referendum
petitions.
Proceedings in the Supreme Court to determine protests or objections to initiative and referendum petitions shall be commenced and
proceed in accordance with the procedures set out in 34 O.S. § 8.
The proceeding shall be treated as an original action and the parties shall be afforded a trial de novo. In re Initiative Petition 281, State
Ques. No. 441, 1967 OK 230, 434 P.2d 941. If factual issues are raised, the
Court may assign the matter to a referee.
The Court may issue directions when the procedure is not set out
in 34 O.S. § 8, in this Rule, or in Part VI of these Rules.”
49. 34 O.S.2011 § 11, states in part that:” . . . Other procedure upon
such appeals shall be the same as is prescribed for appeals from petitions filed as set forth in Section 8 of this title.”
900
50. Tyler v. Shelter Mut. Ins. Co., 2008 OK 9, ¶ 1, 184 P.3d 496. See also
Taylor v. State Farm Fire and Cas. Co., 1999 OK 44, ¶ 19, 981 P.2d 1253,
1261 (All legislative enactments in pari materia are to be interpreted
together as forming a single body of law that will fit into a coherent
symmetry of legislation.).
51. State of Oklahoma, ex rel. State Insurance Fund v. Great Plains Center, Inc., 2003 OK 79, ¶ 29, 78 P.3d 83, 92. See Colton v. Huntleigh USA
Corp., 2005 OK 46, ¶ 10, 121 P.3d 1070, 1073 (The burden to show any
particular fact or claim rests upon the party asserting such fact or claim
as part of that party’s action or defense). The phrase “burden of proof”
is often used to refer to both (1) a burden of persuasion (which is a duty
or obligation of establishing in the mind of the trier of fact a conviction
on the ultimate issue), and (2) a burden to produce evidence in support
of a party’s claim or an affirmative defense. Director, OWCP v. Greenwich Collieries, 512 U.S. 267, 272-275, 114 S.Ct. 2251, 129 L.Ed.2d 221
(1994); Johnson v. Board of Governors of Registered Dentists of the State of
Okla., 1996 OK 41, n. 3, 913 P.2d 1339, 1350 (Opala, J., with Kauger,
V.C.J. Concurring).
52. Oklahoma Supreme Court Rule 1.194, note 48, supra.
53. Powers v. District Court of Tulsa County, 2009 OK 91, n. 23, 227
P.3d 1060, 1070.
54. S. W. v. Duncan, 2001 OK 39, ¶ 31, 24 P.3d 846, 857 (an original
jurisdiction proceeding need not consider a claim that is unsupported
by convincing argument or authority unless the claim is facially apparent without the need for legal research). See also In re Initiative Petition
No. 249, State Question 349, 1950 OK 238, 222 P.2d 1032, 1034 (pursuant
to 34 O.S.1941 § 8 in an initiative petition appeal the hearing in this
Court is a trial de novo in which the burden rests upon the protestant to
establish that party’s various contentions).
55. In re Initiative Petition No. 363, State Question 672, 1996 OK 122,
927 P.2d 558, 571.
56. In re Initiative Petition No. 347, State Question No. 639, 1991 OK
55, 813 P.2d 1019, 1032.
57. In re Initiative Petition No. 360, State Question No. 662, 1994 OK
97, 879 P.2d 810, 820.
58. In re Initiative Petition No. 360, 1994 OK 97, 879 P.2d at 819.
59. In re Initiative Petition No. 363, 1996 OK 122, 927 P.2d at 569.
60. 68 O.S.2011 § 1203, states in part that: “There is hereby levied
and assessed a franchise or excise tax upon every corporation, association, joint-stock company and business trust organized under the laws
of this state . . . .”
68. O.2011 § 1208 (A) & (B):
“A. It is hereby declared to be the purpose of Section 1201 et seq.
of this title to provide for revenue for general governmental functions
of the State of Oklahoma.
B. All monies collected under Section 1201 et seq. of this title shall be
transmitted monthly to the State Treasurer of the State of Oklahoma to be
placed to the credit of the General Revenue Fund of the state, to be paid
out only pursuant to direct appropriations of the Legislature.”
61. See, e.g., Okla. Const. Art. 10 § 23:
“To ensure a balanced annual budget, pursuant to the limitations contained in the foregoing, procedures are herewith established as follows:
1. Not more than forty-five (45) days or less than thirty-five (35)
days prior to the convening of each regular session of the Legislature,
the State Board of Equalization shall certify the total amount of revenue which accrued during the last preceding fiscal year to the General
Revenue Fund and to each Special Revenue Fund appropriated
directly by the Legislature, and shall further certify amounts available
for appropriation . . . .
4. Surplus funds or monies shall be any amount accruing to the
General Revenue Fund of the State of Oklahoma over and above the
itemized estimate made by the State Board of Equalization. . . .”
62. In re Initiative Petition No. 360, State Question No. 662, 1994 OK
97, 879 P.2d 810, 818.
63. In re Initiative Petition No. 360, 1994 OK 97, 879 P.2d at 818.
64. In re Initiative Petition No. 363, State Question No. 672, 1996 OK
122, 927 P.2d 558, 567 (The terms of § 3 require that the petition contain
a simple statement of the gist of the proposition, which is in contrast to
§ 9 which provides that the ballot title, in no more than 150 words,
explain the effect of the proposition: “The purpose of these two statutes is to prevent fraud, deceit or corruption in the initiative process.”)
(emphasis added).
65. 34 O.S.2011 § 2 states in part that: “The question we herewith
submit to our fellow voters is: Shall the following bill (or proposed
amendment to the Constitution or resolution) be approved? (Insert
here an exact copy of the title and text of the measure.)”
66. 34 O.S.2011 § 3 (emphasis added):
“Each initiative petition and each referendum petition shall be
duplicated for the securing of signatures, and each sheet for signatures shall
be attached to a copy of the petition. Each copy of the petition and sheets for
signatures is hereinafter termed a pamphlet. On the outer page of each
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Vol. 85 — No. 12 — 4/19/2014
pamphlet shall be printed the word “Warning,” and underneath this in
ten-point type the words, “It is a felony for anyone to sign an initiative
or referendum petition with any name other than his own, or knowingly to sign his name more than once for the measure, or to sign such
petition when he is not a legal voter.” A simple statement of the gist of
the proposition shall be printed on the top margin of each signature
sheet. Not more than twenty (20) signatures on one sheet on lines
provided for the signatures shall be counted. Any signature sheet not
in substantial compliance with this act shall be disqualified by the
Secretary of State.”
67. 34 O.S.2011 § 10 (A):
“A. Any person who is dissatisfied with the wording of a ballot
title may, within ten (10) days after the same is published by the Secretary of State as provided for in subsection B of Section 8 of this title,
appeal to the Supreme Court by petition in which shall be offered a
substitute ballot title for the one from which the appeal is taken. Upon
the hearing of such appeal, the court may correct or amend the ballot
title before the court, or accept the substitute suggested, or may draft
a new one which will conform to the provisions of Section 9 of this
title.”
68. 34 O.S.2011 § 9(B) states in the first sentence of the paragraph:
“The parties submitting the measure shall also submit a suggested ballot title which shall be filed on a separate sheet of paper and shall not
be deemed part of the petition.”
69. 34 O.S.2001 § 8 (E) states in part:
“Within ninety (90) days after such filing of an initiative petition or
determination of the sufficiency of the petition by the Supreme Court
as provided in this section, whichever is later, the signed copies
thereof shall be filed withe the Secretary of State . . . .”
70. 34 O.S.2011 §§ 2, 3 supra, at notes 65 and 66.
71. Additional signature sheets “shall not be accepted [by the Secretary of State] after 5:00 p.m. on the ninetieth day.” 34 O.S.2011 § 4,
explanatory phrase added.
72. This Court may set the time for a party to file a petition for
rehearing. Fent v. Henry, 2011 OK 10, ¶ 23, 257 P.3d 984, 995.
2014 OK 24
STACEY L. HEMPHILL, Petitioner, v.
HONORABLE PRESTON HARBUCK,
Associate District Judge and/or ATOKA
COUNTY DISTRICT COURT, Respondent.
No. 111,984. April 3, 2014
ORDER ASSUMING ORIGINAL
JURISDICTION FROM THE DISTRICT
COURT OF ATOKA COUNTY
County, Oklahoma. On November 27, 2012, at
a scheduled hearing on the matter, the trial
court attempted to transfer the matter to Alfalfa County.6 The trial court explained in a
response filed in this Court on July 31, 2013,
that the cause was never transferred because
Hemphill never sought a transfer.
¶3 On July 16, 2013, Hemphill filed a Petition
for Writ of Mandamus and Application to
Assume Original Jurisdiction with this Court.
On September 30, 2013, we directed the respondent district court to hear and determine
Hemphill’s claim for relief. The order clearly
stated that: “Johnson v. Scott, 1985 OK 50, ¶ 13,
702 P.2d 56, 59 allows for testimony offered by
telephone.”
¶4 The respondent district court set the hearing for October 22, 2013.7 On December 4, 2013,
the petitioner again requested that we assume
original jurisdiction and issue a writ of mandamus/prohibition to the trial court. On December 12, 2013, the judge entered an order again
denying the change of name. He found that: 1)
Hemphill’s notice of the proceedings was deficient; and 2) Hemphill failed to appear as
directed by the Court. The order states in pertinent part:
[P] ursuant to Johnson v. Scott, 1985 OK 50,
702 P.2d 56, pursuant to the policy of the
25th Judicial District, and pursuant to 12
§1634, after being notified that ‘sworn testimony’ was expected to be given in person, unless ordered and/or allowed by this
Court.
¶1 The petitioner, Stacey Hemphill (Hemphill) is an inmate in the custody of the Oklahoma Department of Corrections.1 On May 11,
2012, while incarcerated in Atoka County, he
filed a petition in the District Court of Atoka
County to change his name to “Apokalypse
God Allah.”2 On June 25, 2012, the trial court
stayed the proceedings, pending notice to the
Oklahoma State Bureau of Investigation and
the resolution of a pending action Hemphill
had filed in Federal Court.3 Even though the
Federal action was not disposed of until February 11, 2013, the trial court denied the name
change on July 26, 2012.4
¶5 The trial court did not provide this Court
with a written copy of the policy of the Twenty-Fifth Judicial District referred to in the order.
Nor have the District Court Rules for that District, the Twenty-Fifth Judicial District, been
provided to the Administrative Office of the
Courts and are thus not available online on the
Oklahoma Supreme Court Network (OSCN).
Pursuant to 20 O.S. 2011 §91.8, local court rules
must be in writing and must be published by
the Oklahoma Supreme Court Network to be
valid and enforceable.8 Because this has not
been done, any local rules for the Twenty-Fifth
Judicial District are invalid and unenforceable.
¶2 Beginning in September of 2012, Hemphill continually attempted to keep the matter
alive and the trial court continually attempted
to end it.5 At some point, on or about November 21, 2012, Hemphill was transferred to the
James Crabtree Correctional Center in Alfalfa
¶6 On January 14, 2014, Hemphill also filed
an appeal with this Court of the trial court’s
final order of December 12, 2013, denying his
name change. This case, No. 112,480, has not yet
had briefing due or a completed record filed.
The record in this cause does not provide enough
Vol. 85 — No. 12 — 4/19/2014
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901
information to review the alleged deficiency in
notice, if any. Once the record is complete in
112,480, the notice issue may, as the dissent suggests, be resolved in that cause. The primary
issue in this cause is the unwillingness of the
trial court to allow a prisoner to give sworn testimony without personally appearing.
Macy, 1992 OK 6, 825 P.2d 1320 we held that a
district court may not refuse to hear an inmate’s
civil suit for non-appearance at a court hearing.
Recently in an unpublished order in Herd v.
Smith, Case No. 109,668, we ordered the trial
court to allow an incarcerated person to give
telephonic testimony in his own divorce case.
¶7 This matter is a civil case, a comparatively
simple action for a change of name.9 This Court
is fully aware of the difficulties faced by the
judges of the district courts of this state in dealing with inmates proceeding pro se in civil matters. This matter is a textbook example of the
difficulties in dealing with an inmate appearing pro se in a civil matter. However, prison
inmates have a right of access to the courts of
Oklahoma civil matters, although they do not
have the right to appear personally.10 The judge
and this Court have both cited Johnson v. Scott,
1985 OK 50, ¶ 9-11, 702 P.2d 56, in the course of
this matter. A full reading of the applicable
language in that case is instructive:
¶9 To be clear, inmate testimony in a civil
case by telephone, video conference or other
electronic means is used in many jurisdictions
to ensure both appropriate inmate access to
courts and the timely resolution of cases.11 The
use of alternative methods of inmate testimony
is no longer unusual. Such procedures are so
commonplace that they must always be considered as alternative methods of testimony in
any civil case where an inmate is a litigant. The
trial court is hereby directed to permit the petitioner to testify by telephone or other suitable
electronic means. This does not mean that the
petitioner is entitled to a name change. He is,
however, under Oklahoma law, allowed to
appear by telephone or other suitable electronic means, rather than in person.
Article 2, Section 6 of the Constitution of
the State of Oklahoma provides in pertinent part: “The courts of justice of the State
shall be open to every person, and speedy
and certain remedy afforded for every
wrong and for every injury to person,
property, or reputation ....”
Inasmuch as appellant was unable to testify because he was imprisoned, we conclude that the judge had discretion to
depose appellant under the provisions of
12 O.S.Supp. 1982 §§ 3204 and 3209 and 12
O.S. 1981 § 397. The judge could have
ordered appellant’s testimony be taken by
deposition upon written questions under
12 O.S.Supp. 1982 § 3208 (A), by deposition
taken by telephone under 12 O.S.Supp.
1982 § 3207 (C)(7), or that a deposition
upon oral examination be recorded by
other than stenographic means under 12
O.S.Supp. 1982 § 3207 (C)(4). Hence, he
abused such discretion and by so doing
violated appellant’s constitutional right of
access to the courts.
¶8 We have, in other cases, had to direct the
district courts to permit the testimony of incarcerated civil litigants by appropriate arrangements. In Harmon v. Harmon, 1997 OK 91, ¶13,
943 P.2d 599 we held that the trial court should
have made some type of arrangement(s) for
husband’s participation in his divorce and
child custody hearing. In Harris v. State ex rel.
902
APPLICATION TO ASSUME ORIGINAL
JURISDICTION GRANTED. APPLICATION
FOR WRIT OF MANDAMUS GRANTED.
TRIAL COURT DIRECTED TO PERMIT
THE PETITIONER TO TESTIFY BY TELEPHONE OR OTHER SUITABLE ELECTRONIC MEANS.
DONE BY ORDER OF THE SUPREME
COURT IN CONFERENCE THIS 3rd DAY
OF APRIL, 2014.
/s/ Tom Colbert
CHIEF JUSTICE
TAYLOR, J., with whom Winchester, J., joins,
dissenting:
¶1 I respectfully dissent from the Court’s
expansion of prisoner’s rights. The petitioner is
a thirteen-time convicted felon serving time in
prison. He has a lengthy public criminal history beginning in 1993. He already has aliases of
Stacey L. Hamphill, Stacey L. Hemphil, Apokalypse Hemphill, Terrance L. Hemphill, Stacey
L. Himphill, Laqua Pollard, and Ra Shabazz.
Now he wants the Court to order the district
court to allow him to get on the telephone and
phone in his testimony which would support a
legal name change to Apokalypse God Allah.
With such a long criminal record and the use of
so many aliases, the purpose of the petitioner’s
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Vol. 85 — No. 12 — 4/19/2014
name change must be to disassociate himself
with his criminal past and to fraudulently
deceive the public of his criminal past, rather
than for any lawful purpose. Today the Court
goes to great lengths to facilitate the petitioner’s quest by ignoring our prudential rules,
vitiating the due process concept of notice,
misapprehending the Oklahoma Constitution
and this Court’s cases, and usurping the district court’s discretion.
¶2 A writ of mandamus to require an act’s
performance will issue when a petitioner has
“a clear legal right to the act performed,” the
act arises from respondent’s duty “arising from
an office, trust, or station,” the act is not discretionary, the respondent has refused to act, “the
writ will provide adequate relief,” and there is
no clear adequate remedy at law. Kelley v. Kelley, 2007 OK 100 n. 5, 175 P.3d 400, 403 n. 5.
¶3 Here, four of these elements are missing.
The petitioner does not have a clear legal right
to appear by telephone or electronically; the
district court has discretion to determine which
method to use to allow the petitioner’s statement to be part of the record; the respondent
has not refused to allow the petitioner to
appear by telephone or electronically but bases
the denial of name change on lack of notice;
and an appeal is pending which provides an
adequate remedy at law. Thus, it is not proper
for a writ to issue mandating that the district
court allow the prisoner to testify by telephone
or other electronic means.
¶4 The purpose of this rule is highlighted by
the Court’s issuing the writ in this case. Here,
the Court requires the district court to hold a
hearing and allow the prisoner to testify even
though there is a dispute over whether notice
was properly given. The respondent states that
the prisoner has failed to properly give notice
and that this is one of the reasons for denying
the name change. The prisoner states that he
has met all the statutory requirements for giving notice. Were the Court to do as it should,
which is to deny the writ and issue an opinion
in the appeal, the record would be before the
Court so that this factual issue could be
resolved. Instead, the Court plows ahead to the
issue of the petitioner’s court appearance,
ignoring the issue of notice. If the writ in this
case is for the sole purpose of allowing the petitioner to testify by phone or other electronic
means, it not only ignores the notice requirement but is premature and needless since the
petitioner may never give proper notice or may
Vol. 85 — No. 12 — 4/19/2014
dismiss the case before doing so. Without having given proper notice, the petitioner has no
right to testify as the Court directs.
¶5 By ordering that this matter proceed without a factual determination of whether notice
was properly given, the Court vitiates the
notice requirement in this case; in all other
cases seeking a name change; and, possibly, in
all civil cases. Simply put, after the Court’s
decision today, a party may avoid giving notice
by running to the Court for a writ ordering the
district court to proceed without proper notice.
Because notice is a due process requirement
under the United States Constitution, the Court
opens the door for the United States Supreme
Court to review our cases to ensure that minimum due process is protected by this State’s
courts.
¶6 The Court primarily relies on article 2,
section VI of the Oklahoma Constitution and
Johnson v. Scott, 1985 OK 50, 702 P.2d 56, to support its proposition that a prisoner is entitled to
appear by phone or other electronic means for
a hearing on a name change. These sources do
not support the Court’s conclusion. Title 12,
section 1634 of the Oklahoma Statutes requires
only that the material allegations in the petition be sustained by sworn testimony.
¶7 Article 2, section VI of the Oklahoma Constitution provides:
The courts of justice of the State shall be
open to every person, and speedy and certain remedy afforded for every wrong and
for every injury to person, property, or
reputation; and right and justice shall be
administered without sale, denial, delay, or
prejudice.
In a change of name proceeding, there is no
wrong or injury which would afford a petitioner
the right to access to a court under this constitutional provision. Rather, the right to a name
change is a statutory right which can be also
restricted by statute. Perhaps the Legislature
should consider amending the law to prohibit
convicted felons from changing their names.
¶8 Neither Johnson v. Scott, 1985 OK 50, 702
P.2d 56, nor the other cases cited by the Court
support its conclusion. The cause of action in
Johnson was to regain Johnson’s personal property. Further, Johnson would have allowed the
judge the discretion to accept written testimony rather than dictate the method for getting
the sworn evidence before the court. Harmon v.
The Oklahoma Bar Journal
903
Harmon, 1997 OK 91, 943 P.2d 599, was a
divorce proceeding in which the prisoner’s
personal property and rights to child custody,
visitation, and support were at issue. Likewise,
Herd v. Smith, No. 109,668 (Okla. Nov. 28, 2011),
was a divorce proceeding. Harris v. State ex rel.
Macy, 1992 OK 6, 825 P.2d 1320, dealt with a
forfeiture of property. These cases, unlike the
one here, all involved an injury or wrong for
which the Oklahoma Constitution affords
redress through the courts.
¶9 There are many United States constitutional rights which a person loses upon imprisonment for a felony conviction. The First
Amendment right to assemble; the Second
Amendment right to bear firearms; the Fourth
Amendment right to be free from unreasonable
search and seizure; and the right to vote embodied in the Fifteenth, Nineteenth, and TwentySixth Amendments are forfeited upon a felony
conviction. Additionally, the First Amendment
right to free speech is limited.
¶10 In addition to the loss of rights under the
United States Constitution, a convicted felon
forfeits many rights under the Oklahoma statutes: (1) the right to vote, Okla. Const., art. III,
§ 1; 26 O.S.2011, § 4-101 (felon ineligible to register for period equal to time prescribed in
judgment and sentence); (2) the right to possess a firearm, 21 O.S.2011, § 1283; (3) the right
to sit on a jury, 38 O.S.2011, § 28(C)(5); (4) the
right to hold a “county, municipal, judicial or
school office or any other elective office of any
political subdivision of this state for a period of
fifteen” years following completion of the sentence, 26 O.S.2011, § 5-105a(A); and (5) the right
to continue to hold state or county office or
employment position. 51 O.S.2011, § 24.1(A).
¶11 This is the perfect example of the swarm
of inmate recreational litigation clogging our
courts. Inmates who engage in recreational litigation1 by filing cases which are frivolous or
malicious, or which fail to state a claim, may
forfeit the right to access to the courthouse. See
57 O.S.2011, § 566.2(A). Changing one’s name
to Apokalypse God Allah is frivolous and is
for the fraudulent purpose of hiding the petitioner’s criminal past from unsuspecting victims. The petitioner has no right to bring this
frivolous suit. Therefore, I respectfully dissent.
1. Website of the Oklahoma Department of Corrections.
2. Apparently, this was his second attempt at a name change. His
first request for a change of name was dismissed in 2009. Docket of the
District Court of Atoka County, Case Number CV 2009-0051.
904
3. Docket of the District Court of Atoka County, Case Number
CV-2012-00025, states:
PETITIONER’S NOTICE TO THE COURT IN RE OF COURT
MINUTE ISSUED BY JUDGE: HON. PRESTON HARBUCK,
DIRECTING PETITIONER TO PROVIDE NOTICE OF PROCEEDINGS TO THE O.S.B.I. INCLUDING PROCEEDINGS
STAYED UNTIL PROPER NOTICE IS GIVEN AND FEDERAL
COURT APPEAL IS COMPLETE.
4. Hemphill v. Jones, et al., CV 011-92, United States District Court
for the Western District of Oklahoma.
5. Collier v. Reese, 2009 OK 86, ¶ 8, 223 P.3d 966, 970 (The Oklahoma Supreme Court takes judicial notice of the dockets of appellate
and district courts.)
6. Docket of the District Court of Atoka County, Case Number
CV-2012-00025 states:
November 27, 2012, COURT MINUTE-CASES ORDERED
TRANSFERRED TO ALFALFA CO.
On July 31, 2013, the trial court explained in a response to this Court
that the minute order contained a scriveners error and should have
stated that the case would be transferred if requested by Hemphill and
if accepted by Alfalfa County.
7. A copy of the order of the respondent district court entered on
October 7, 2013 is not contained in the record. Reference is made in the
order of December 12, 2013 to the directions given to Hemphill by the
court in this order.
8. Title 20 O.S. 2011 § 91.8 provides:
Local rules and administrative orders of a district court shall not
conflict with any statutes of this state or any rules of a superior
court. Local rules shall be in writing and published on the Oklahoma Supreme Court Network to be valid and enforceable.
9. Title 12 O.S. 2011 §§1631-1637. Title 12 O.S. 2011 §1634 provides:
The material allegations of the petition shall be sustained by
sworn evidence, and the prayer of the petition shall be granted
unless the court or judge finds that the change is sought for an
illegal or fraudulent purpose, or that a material allegation in the
petition is false.
10. Gaines v. Maynard, 1991 OK 27, 808 P.2d 672; Kordis v. Kordis,
2001 OK 99, 37 P.2d 866.
11. For example, Walbert v. Walbert, 1997 ND 164, 567 N.W.2d 829,
[Denial of an inmate’s due process rights of reasonable access to courts
to refuse the opportunity to testify at divorce trial by telephone.]; Webb
v. State, 555 N.W.2d 824 (Iowa 1996), [Offer to inmate to present evidence by telephone afforded fundamental fairness.]; Gosby v. Third
Judicial Circuit, et al., 586 So. 2d 1056 (Fla. 1991), [Trial court cannot
make inmate personally appear when seeking a change of name; a
hearing by deposition or telephone is acceptable.].
TAYLOR, J., with whom Winchester, J., joins,
dissenting:
1. This is the seventh proceeding filed by the petitioner in the
Court and the Oklahoma Court of Criminal Appeals.
2014 OK 25
STATE OF OKLAHOMA ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v.
MARK ANDREW ZANNOTTI, Respondent.
SCBD No. 6019. April 8, 2014
ORIGINAL PROCEEDING FOR ATTORNEY
DISCIPLINE
¶0 The Oklahoma Bar Association filed a
complaint against Respondent alleging
violations of Rule 8.4(b) of the Oklahoma
Rules of Professional Conduct (ORPC), 5
O.S.2011, ch. 1, app. 3-A, and Rule 1.3 of the
Rules Governing Disciplinary Proceedings
(RGDP), 5 O.S.2011, ch. 1, app. 1-A. The
basis of the complaint was respondent’s nolo
contendere plea to domestic assault and mali-
The Oklahoma Bar Journal
Vol. 85 — No. 12 — 4/19/2014
cious injury to property and a protective
order entered against him. The parties stipulated to the facts and agreed to a recommended discipline of public censure and
probation. The Professional Responsibility
Tribunal found that Respondent had violated the ORPC and RGDP as alleged and recommended a public censure and probation
until January 20, 2015.
RESPONDENT SUSPENDED; MOTION TO
ASSESS COSTS DENIED.
Loraine Dillinder Farabow, Assistant General
Counsel, Oklahoma Bar Association, Oklahoma City, Oklahoma, for Complainant.
Charles F. Alden, Oklahoma City, Oklahoma,
for Respondent.
TAYLOR, J.
¶1 The Oklahoma Bar Association (OBA)
filed a complaint against attorney Mark Andrew
Zannotti (Respondent). The OBA alleges
Respondent violated Rule 8.4(b)1 of the Oklahoma Rules of Professional Conduct (ORPC), 5
O.S.2011, ch. 1, app. 3-A, and Rule 1.32 of the
Rules Governing Disciplinary Proceedings
(RGDP), 5 O.S.2011, ch. 1, app. 1-A, and that he
should be disciplined. The parties entered into
stipulations of facts, including that Respondent
pled nolo contendere to charges of domestic violence and destruction of another’s property
and is under a protective order, and recommended a public reprimand with a period of
probation. The Professional Responsibility Tribunal (PRT) held a hearing and filed a report
finding that Respondent had violated the
ORPC and RGDP and recommending that
Respondent should be disciplined by public
reprimand with probation.
¶2 The first issue before this Court is whether
Respondent violated the ORPC’s and the
RGDP’s rules governing attorneys’ conduct. If
so, the second issue is what discipline should
be imposed on Respondent. We find that
Respondent has violated the ORPC’s and the
RGDP’s rules governing attorney conduct. We
determine the proper discipline to be suspension from the practice of law for two years if
Respondent successfully completes the requirements of the order deferring the sentence and
judgment, subject to reconsideration if the
judgment and sentencing are accelerated.
Vol. 85 — No. 12 — 4/19/2014
I. REVIEW OF PRT PROCEEDING
AND RECORD
¶3 This Court has original and exclusive
jurisdiction over bar disciplinary matters. Rule
1.1, RGDP. This Court’s review of the proceeding before the PRT is de novo. State ex rel. Okla.
Bar Ass’n v. Donnelly, 1992 OK 164, ¶ 11, 848 P.2d
543, 545. In our de novo review, we examine the
record and assess the weight and credibility of
the evidence. Id. This Court is not bound by the
parties’ admissions, the parties’ stipulations, or
the PRT’s findings of facts and misconduct or
recommendations of discipline. Id.
¶4 The record includes the parties’ stipulations, a transcript of the PRT hearing, and
documentary evidence. Factual stipulations
that are consistent with the record are adopted
by this Court; to the extent the stipulations are
inconsistent with the record, they are rejected.
See State ex rel. Oklahoma Bar Ass’n v. Chapman,
2005 OK 16, ¶¶ 11-12, 114 P.3d 414, 416. Here, the
stipulated facts present an incomplete account of
the facts and of Respondent’s misconduct.
II. BACKGROUND FACTS
¶5 On November 9, 2009, J.D. retained
Respondent as her attorney in her divorce proceeding. On October 3, 2010, J.D. and Respondent began a sexual dating relationship
although both were married and Respondent
was still representing J.D. On November 3,
2010, Respondent filed an application to withdraw as J.D.’s attorney; the application was
granted on November 4, 2010. The couple
dated off and on until November 4, 2011.
¶6 The following undisputed testimony was
presented at the trial in State v. Zannotti, No.
CM-2012-3988 (D.Ct. Tulsa County Jan. 28,
2013). On or before October 26, 2011, while J.D.
was away on a business trip and then on her
way home, Respondent sent J.D. text messages
which show that Respondent was in a needy,
jealous state of mind; and J.D. responded to
several, but not all, of the text messages.3 J.D.
and Respondent agreed to meet at her house
because Respondent was “wanting to get back
together.” Respondent let himself into J.D.’s
house through an unlocked back door as she
had instructed him. When J.D. arrived home
and to her surprise, her garage door was open
with Respondent’s car parked inside. Even
though they were not dating at the time,
Respondent opened J.D.’s car door and kissed
her. Then Respondent reached inside the car,
grabbed her phone, smashed it in the drive-
The Oklahoma Bar Journal
905
way, and said, “You don’t need this. You just
need to pay attention to me.”
¶7 J.D. and Respondent went into the kitchen
where an argument began. When Respondent
went into the backyard, J.D. got in her car and
attempted to leave. Respondent came into the
garage, pulled the keys out of the car, and
pulled J.D. out of the car and into the kitchen.
After J.D. saw Respondent’s phone on the
counter, she encouraged Respondent to smash
his phone like he had smashed her phone.
When Respondent went outside with his
phone, J.D. grabbed a cordless phone and ran
upstairs to the bathroom.
¶8 Respondent came up the stairs and into the
bathroom, pulled J.D. into the bedroom, and
pushed her onto the bed. J.D. started screaming
for Respondent to leave which upset him even
more. Respondent then lifted J.D. up by her
shoulders, threw her into the bedroom wall and
head-butted her in the face, causing a gash
across her nose and giving her two black eyes.
¶9 J.D. convinced Respondent to let her go
downstairs to get some ice for her nose, and
Respondent followed her into the kitchen.
Respondent pushed J.D. back upstairs where
he ordered her to undress and where he
undressed.4 Respondent ordered J.D. to lie
down on the bed, got atop her, and put his
hands around her neck tightly several times.
During this time, Respondent asked her if she
loved him and would marry him. In an attempt
to pacify Respondent, J.D. replied, “Yes.”
Respondent also asked J.D. for the last name of
her male friend and said that he was going to
kill him. Finally, Respondent began to calm
down, and J.D. was able to kick him off the
bed. Respondent stood up and asked J.D. if she
wanted him to leave. She grabbed her dress,
put it back on, and answered, “yeah.” While
Respondent was dressing, J.D. ran down the
stairs, ran out the front door to a neighbor’s
house, and called 911.
¶10 After the police arrived and questioned
J.D., she went to a friend’s house to stay. J.D.
was out of town the next few days. When she
returned home, J.D. filed for a protective order.
The district attorney filed charges against
Respondent for misdemeanor domestic abuse
assault and battery,5 and malicious injury to
property.6
¶11 On August 8, 2012, a criminal information was filed. Respondent was charged in
Count I of the Information as follows:
906
MARK ANDREW ZANNOTTI, on or about
10/26/2011, in Tulsa County, State of Oklahoma and within the jurisdiction of this
Court, did commit the crime of DOMESTIC
ASSAULT & BATTERY, a Misdemeanor, by
unlawfully, willfully and wrongfully, commit an assault and battery upon the person
of one [J.D.], a person with whom the defendant was in a dating relationship, by then
and there pushing and shoving her and
striking her about the face with force and
violence and with the unlawful intent to do
her corporal hurt and bodily injury . . . .
Count II charged that Respondent “unlawfully,
willfully, maliciously and wrongfully” injured
and defaced J.D.’s phone by “taking the phone
and breaking it with the deliberate and malicious and wrongful intent to injure property of
said owner.”7 Respondent pled nolo contendere
to the criminal charges.
¶12 J.D. testified in the criminal proceeding
that, since the incident, she had not stayed
alone at night in her house, was seeing a counselor, was taking medication to calm her, and
was frightened of running into Respondent.8
She testified that he had never before exhibited
violent behavior, and she would not have
expected such behavior from him. The judge
deferred the sentencing for two years, stating:
“When the prosecutor is recommending situations where they want probation in the amount
— in the amount of one year, I get exactly the
same punishment by extending it and — not
punishment, but safety of the — of the community and punishment, by extending it. And
the only way I can do that is with a deferred
sentence.”9
¶13 At the hearing before the PRT, OBA counsel asked Respondent the following question:
And her proffer to the Court regarding the
factual basis for the plea was that the
State’s evidence would show that on October 26, 2011, that the Defendant, while at
the home of the victim, [J.D.] — I’m going
to skip through the address — that he
grabbed her arm, pushed her, head-butted
her in the face and threw her down, and
that the Court added, and allegedly grabbed
her phone earlier, threw it in the driveway,
breaking it and having it skid into the yard.
Is that also true? And then the Court asked
you, “Is that the evidence you’re telling me
that I should accept as true although you’re
not admitting to any part of it?”
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Vol. 85 — No. 12 — 4/19/2014
Respondent answered: “Yes.” Then OBA counsel asked: “And was that, in fact, what you
entered the plea to?” Respondent again
answered: “Yes.” Respondent stated that he
had put his hands on J.D. inappropriately but
that he had not done everything she said he
did without elaborating.10
¶14 Respondent testified that J.D. convinced
him that “maybe it would work.” He further
testified that “she wanted me to come over on
the 26th after I picked her up from the airport
a couple of weeks before. . . .” The text messages do not support Respondent’s testimony
that it was J.D. who wanted to continue the
relationship. The text messages, see Appendix
A, show that Respondent was the one insisting
on he and J.D. meeting on October 26.
¶15 Respondent has paid for the cell phone,
started counseling even before the criminal
charges were filed, and has cooperated with
the OBA in its investigation. He states that he is
embarrassed by his behavior, understands how
he has hurt people, understands that he has
brought disrepute upon the legal profession,
and is sure he will never act in the same way
again.
¶16 The parties stipulated to the following
mitigation: Respondent has practiced for nineteen years without discipline by this Court, he
has cooperated with the OBA’s investigation,
he has complied with the terms of the deferment order, his conduct was not related to his
practice of law, and he has made full restitution. The witnesses that testified in his behalf,
including his counselor, think he is fit to practice law and would not have anticipated
Respondent’s behavior on October 26, 2011.11
III. VIOLATIONS OF THE ORPC
AND THE RGDP
¶17 The OBA alleges and the Respondent
admits that he violated Rule 8.4(b) of the ORPC
and Rule 1.3 of the RGDP. A lawyer’s violent
acts in the form of domestic abuse demonstrate
a lawyer’s unfitness to practice law. See Rule
8.4, cmt. 2, ORPC. The facts underlying the
conviction are the facts in the disciplinary proceeding. Rule 7.2, RGDP. Respondent’s acts
show a disregard for the laws that he has
sworn to uphold and for the rules governing
lawyers’ conduct. The characterization of
Respondent’s conduct as criminal, civil, or neither matters not. State ex rel. Okla. Bar Ass’n v.
Livshee, 1994 OK 12, ¶ 8, 870 P.2d 770, 774. “The
misconduct clearly does not comport with
Vol. 85 — No. 12 — 4/19/2014
accepted professional standards because it is
likely to undermine public confidence in and
perception of the legal profession as a community of law-abiding practitioners.” Id.
¶18 The evidence shows that Respondent
violated Rule 1.8(j) of the ORPC, as well as
Rule 8.4(b) of the ORPC and Rule 1.3 of the
RGDP. Rule 1.8(j) prohibits a lawyer from
beginning a sexual relationship with a client.
Even though Respondent withdrew his representation of J.D. in her divorce proceeding
shortly after beginning a sexual relationship
with her, he nonetheless violated Rule 1.8(j).
However, the OBA did not allege facts in the
complaint in support of a violation of Rule 1.8(j).
Due process considerations limit this Court’s
exercise of power to discipline Respondent for a
violation of Rule 1.8(j). If this were the only rule
the Respondent had violated, we would be compelled to dismiss the complaint. But it is not.
And while we cannot consider Respondent’s
violation of Rule 1.8(j) in determining whether
Respondent violated the ORPC, we may consider this violation, as we consider other factors
presented by the evidence, in determining the
appropriate discipline.
IV. DISCIPLINE
¶19 The evidence does not support the parties’ stipulations to the mitigation that Respondent’s misconduct did not relate to his practice
of law and that he has made full restitution.
First, Respondent was in a position of trust
when he started the sexual relationship with
J.D. that led to his acts of domestic violence.
Certainly taking advantage of a client going
through a divorce and heaping violence upon
that now former client relates to his practice of
law. Second, there is no evidence that Respondent paid for J.D.’s medical and counseling
expenses resulting from the physical and psychological injuries as a result of the domestic
violence inflicted upon her. Further, Respondent can do nothing to rectify the psychological damage he inflicted on J.D. Respondent’s
testimony regarding the events of October 26,
2011, to portray J.D. as the needy party in the
relationship and himself in a more favorable
light, shows that Respondent has not accepted
responsibility for his actions and undermines
the testimony of his remorse.
¶20 Next we turn to the issue of the manner
in which this bar matter came to this Court. But
for the district court clerk’s failure to comply
with Rule 7.2 of the RGDP by filing the order
The Oklahoma Bar Journal
907
deferring sentencing and judgment with the
Chief Justice,12 this disciplinary process would
have been initiated within a short time after his
plea (instead of six months later), and the
Respondent would have been suspended from
the practice of law soon thereafter. Rule 7.3,
RGDP. Rule 7.2 allows, but does not require,
the OBA to forward this documentation to the
Chief Justice when it receives it, and, in this
case, the OBA did not do so. Rather, the OBA
filed this disciplinary proceeding under Rule 6
of the RGDP. The OBA was previously warned
about taking advantage of a court clerk’s failure to comply with Rule 7.2 in State ex rel.
Casey, 2012 OK 93, 295 P.3d 1096 (Kauger, J.
concurring in part/dissenting in part); State ex
rel. Okla. Bar Ass’n v. Conrady, 2012 OK 29, 275
P.3d 133 (Kauger, J. concurring specially).
¶21 Because neither the district clerk nor the
OBA filed the order deferring the judgment
and sentence in the criminal case with the
Chief Justice pursuant to Rule 7.2 of the RGDP,
we cannot follow the Rule 7 procedures. However, our discipline would be uneven if this
Court ignores Rule 7 and allows a lawyer to
escape suspension merely because a district
court clerk failed to follow Rule 7.2. Further, it
would be inconsistent for this Court to impose
discipline of a suspension under Rule 7 for
criminal acts showing an unfitness to practice
law but not do so when the proceeding is filed
under Rule 6. This Court will not allow the
OBA to circumvent Rule 7’s mandates by
bringing this proceeding under Rule 6 rather
than filing the documents from the criminal
proceeding with the Chief Justice. Under Rule
7.3, an immediate interim suspension is mandated as part of the discipline to protect the
public and the integrity of the judicial system
and the reputation of the bar.
¶22 In this regard and because the OBA’s
failed to take heed after the warnings in Casey
and in Conrady, it has become necessary to take
more assertive measures in addressing the problem of the OBA electing to file what should be a
Rule 7 proceeding under Rule 6. In order to remedy this problem, the OBA is directed, in all
future cases, to furnish certified copies of documents listed in Rule 7.2 to the Chief Justice
within five days of receiving such documents.
¶23 In support of their request for public
reprimand, the OBA and Respondent cite to
State ex rel. Okla. Bar Ass’n v. Corrales, 2012 OK
64, 280 P.3d 968 (pled to three counts of assault
and battery; did not involve a client or former
908
client); State ex rel. Okla. Bar Ass’n v. Murdock,
2010 OK 32, 236 P.3d 107 (entered Alford plea
to the misdemeanor charge of Outraging Public Decency, in violation of 21 O.S.2001 § 22; did
not involve a client or former client); State ex
rel. Okla. Bar Ass’n v. Garrett, 2005 OK 91, 127
P.3d 600 (pled guilty to misdemeanor battery;
no client or former client involved); State ex rel.
Okla. Bar Ass’n v. Foster, 2000 OK 4, 995 P.2d
1138 (feloniously touching a minor with intent
to commit felony of procuring obscene and
indecent photographs); State ex rel. Okla. Bar
Ass’n v. Sopher, 1993 OK 55, 852 P.2d 707
(unwelcome sexual advances toward client
and client’s mother). One of the purposes of
discipline is to deter like misconduct in the
practicing bar. State ex rel. Okla. Bar Ass’n v.
Golden, 2008 OK 39, ¶ 11, 201 P.3d 862, 864. It is
obvious from Respondent’s misconduct that
the cases relied on by Respondent in his quest
for public censure did not serve to deter
Respondent.
¶24 As incidents of domestic and intimate
partner abuse rise and become the focus of legislation, see 21 O.S.2011, § 644(C), and public
attention,13 it becomes more incumbent on this
Court to protect the public by sending a message to other lawyers that this misconduct is
considered a serious breach of a lawyer’s ethical duty and will not be tolerated. The trial
judge thought it necessary to keep Respondent
in the criminal system for a full two years for
the safety of the public. Consistent with the
trial judge’s logic, anything less than a twoyear suspension from the practice of law does
not protect the public, nor would anything less
than a two-year suspension protect the integrity of the judicial system and the reputation of
the bar.
V. CONCLUSION
¶25 Respondent violated Rule 8.4(b) of the
ORPC and Rule 1.3 of the RGDP, and his
actions show a lack of fitness to practice law
and have brought disrepute to the judicial system and the legal profession. Respondent
stands suspended from the practice of law for
two years; however, if Respondent’s judgment
and sentencing is accelerated, this Court may
reconsider the discipline imposed today. The
OBA is directed to immediately notify this
Court of any motion to or order accelerating
the judgment and sentence.
¶26 The OBA filed an application for costs
pursuant to Rule 6.16 of the RGDP in the
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Vol. 85 — No. 12 — 4/19/2014
amount of $718.68. Because this proceeding
was not brought under the proper rule, the
motion for costs is denied.
RESPONDENT SUSPENDED; MOTION TO
ASSESS COSTS DENIED.
Concur: Reif, V.C.J., and Kauger, Taylor, Combs,
and Gurich, JJ.
Concur in Part, Dissent in Part: Colbert, C.J.,
and Watt, J.
Dissent: Winchester and Edmondson, JJ.
Appendix A
The text messages follow.
Date unknown:
Respondent: “Want to spend the rest of my
life w ypu”
Respondent: “They do it’s not me. They both
said it”
Respondent: “They can tell that I love you”
J.D.: “Clean up. See you weds”
Respondent: “Clea n up?”
The messages from October 24, 2011, follow.
Respondent: “Good morning I love you.”
J.D.: “Way too early.”
Respondent: “Agreed.”
Respondent: “Call me when you get to
Miami. When do you get back on Wed,? And
let’s go out Wed, night”
J.D.: “Not sure on Weds. Haven’t booked my
ticket. Will depend on availability. Sadly right
now I don’t want anything but sleep. California has me all messed up.”
Respondent: “I understand. But plan on it.”
J.D.: “Depends on when I get back. I have to
go to OKC on Thursday morning.”
Respondent: “Nor taking no. So just plan on
it.”
...
Respondent: “Ok was it a good day?”
Respondent: “I love you.”
J.D.: “Yes it was a good day. How was
yours?”
...
Respondent: “Ok this may seem silly, but I
changed your contact info. It had been under
[D.] for a year. It’s now [J.]. It’s about time.”
Respondent: “I love you [J.D.].”
The messages from October 25, 2011, follow.
Respondent: “Good morning. I love you.”
Respondent: “Hello”
Vol. 85 — No. 12 — 4/19/2014
J.D.: “Hey. Getting dressed. Meeting Greg for
breakfast”
Respondent: “Ok I’m sort of having anxiety.
Dint know who Greg is but I need to know you
love me. O”
J.D.: “Greg is my work associate. I do love
you.”
Respondent: “Thank you I really needed
that. I miss you so much it hurts.”
Respondent: “Just thinking of you.”
Respondent: “Hello [J.D.].”
J.D.: “Hey.”
Respondent: “You busy or can I call?”
J.D.: “Sorry on a cc”
...
Respondent: “I love you [J.D.].”
Respondent: “I understand thank to for calling I’ll call you later.”
Respondent: “Do you know I love you?”
J.D.: “Just got to dinner. Hour walk on the
beach. Amazing”
Respondent: “Super so do you know?”
J.D.: “Nope”
Respondent: “I love you very very much”
J.D.: “We will see”
Respondent: “I know. I understand you ate
wary. Please believe me you are all I think
about. I know I need to prove it more. I will. Do
you love me [J.D.]?”
Respondent: “Please respond”
Respondent: “Did I do something.”
Respondent: “I love you.”
J.D.: “On my way to hotel”
Respondent: “Ok can I call in a bit?”
Respondent: “Called please”
J.D.: “?? Just got to hotel”
Respondent: “Sorry meant call me please”
J.D.: “??”
Respondent: “Please answer I want to talk
some more I’m sorry I live you”
J.D.: “I’m sorry I love you too?”
Respondent: “Please answer”
J.D.: “I don’t want to talk to you anymore”
Respondent: “Please just for a minute”
J.D.: “Why?”
Respondent: “I don’t want to ent the conversation like that”
Respondent: “Please [J.D.]”
J.D.: “How do you want to end it?”
Respondent: “I liove you”
The Oklahoma Bar Journal
909
Respondent: “Better”
Respondent: “I want it to end that we end up
together because we love and respect each
other. I dint want us to end”
Respondent: “Please let me hear you voice”
Respondent: “Please give me five minutes”
J.D.: “1 minute”
Respondent: “Ok”
Respondent: “I’m sorry. I don’t want anyone
but you.”
J.D.: “Keep this up you can have anyone but
me
You have no idea how much I challenge
myself about you
When you push you over me. Not a win
win”
Respondent: “I don’t understand”
J.D.: “?”
Respondent: “The last sentence”
J.D.: “Why?”
Respondent: “I didn’t understand it”
J.D.: “It’s all about you”
Respondent “I asked what I can do for you,
as far as I’m concerned it’s all about you and
how I fix my mistakes.”
Respondent: “Can I ask you a question?”
J.D.: “going to bed. Do not want to talk to
you”
Respondent: “Ok may I text you a question?”
J.D.: “Like you ask?”
Respondent: “May I please?”
J.D.: “That was your question. yep. Done”
Respondent: “No I mean may I ask you a
question?”
J.D.: “That’s question 3”
Respondent: “Well you never said I could ask
so not sure but do I have a chance or do you
hate me top much? I love you but I don’t want
to hurt you. I know I’ve said it before, I’m trying I rally am.”
Respondent: “Yours tired get some rest and
well talk tomorrow can’t wait to see you.
Mark”
Respondent: “Just wanted to say good nite. I
love you.”
Respondent: “You asleep?”
The messages from October 26, 2011, follow.
At 5:43 am
Respondent: “Good morning [J.D.]. I love
you can’t wait to see you tonite.”
910
At 7:20 am
Respondent: “Hello?”
J.D.: “Hey. At breakfast. Heading to the
office.”
Respondent: “Can I call in a bit?”
At 7:31 am
Respondent: “Do you love me?
Respondent: “Hey”
J.D.: “I’ll be free this afternoon”
At 7:47 am
Respondent: “Do you live me? Can I see you
tonite?”
Respondent: “Please tell me you love me.”
J.D.: “I love you”
Respondent: “Thank you. I hope so. I really
am trying. I love you [J.D.].”
J.D.: “I know you are trying.”
At 8:01 am
Respondent: “You didn’t say that you loved
me to get me to calm down, you really do live
me?
Respondent: “Sorry love me”
Respondent: “I love you and I’ll keep trying.”
At 8:45 am
Respondent: “Just thinking of you.”
At 9:42 am
Respondent: “Damn I miss you”
At 10:42 am
Respondent: “I’m in depo this aft.”
At 11:58
Respondent: “May I see you tonite?”
J.D.: “Yes. If I get back ontime. 830. I leave for
OKC tomorrow morning.”
Discussion about dinner menu.
J.D.: “. . . Also I have a really tight connection
in Dallas. If I miss it next one gets in at 10”
Respondent: “I can’t wait until 10; what do
want for dinner then?”
At 12:17 pm
J.D.: “It will be too late for me to eat.”
Respondent: “Ok I love you [J.D.].”
At 1:53 pm
Respondent: “Just thinking of you”
Respondent: “Getting cooler here.”
At 6:57 pm
Respondent: Did you land in DFW yet?”
J.D.: “Just got here. Flight in 40 min. . . .”
The Oklahoma Bar Journal
Vol. 85 — No. 12 — 4/19/2014
More discussion about dinner menu and
children
Respondent: “. . . [E.] thinks you should
marry me”
Respondent: “I agree w her”
Respondent: “I love you [J.D.]”
TAYLOR, J.
1. Rule 8.4 of the ORPC provides:
It is professional misconduct for a lawyer to:
(b) commit a criminal act that reflects adversely on the lawyer’s
honesty, trustworthiness or fitness as a lawyer in other respects;
Comment 2 to Rule 8.4 ORPC provides:
Although a lawyer is personally answerable to the entire criminal law, a lawyer should be professionally answerable only for
offenses that indicate lack of those characteristics relevant to law
practice. Offenses involving violence, dishonesty, breach of trust,
or serious interference with the administration of justice are in
that category. A pattern of repeated offenses, even ones of minor
significance when considered separately, can indicate indifference to legal obligation.
2. Rule 1.3 of the RGDP provides:
The commission by any lawyer of any act contrary to prescribed standards of conduct, whether in the course of his professional capacity, or otherwise, which act would reasonably be
found to bring discredit upon the legal profession, shall be
grounds for disciplinary action. . . .
3. The text messages are found in Appendix A to this opinion.
4. There are no allegations or evidence of rape either in the criminal
assault and battery case or in this bar proceeding.
5. See 21 O.S.2011, § 644(C). Section 644(C) provides in relevant
part:
Any person who commits any assault and battery against …
a person with whom the defendant is in a dating relationship as
defined by Section 60.1 of Title 22 of the Oklahoma Statutes . . .
shall be guilty of domestic abuse. Upon conviction, the defendant shall be punished by imprisonment in the county jail not
exceeding one (1) year, or by a fine of not more than Three Thousand Dollars ($3,000.00), or by both such fine and imprisonment.
...
6. See 21 O.S.2011, § 1760, which provides:
A. Every person who maliciously injures, defaces or destroys
any real or personal property not his or her own, in cases other
than such as are specified in Section 1761 et seq. of this title, is
guilty of:
1. A misdemeanor, if the damage, defacement or destruction
causes a loss which has an aggregate value of less than One
Thousand Dollars ($1,000.00);
...
B. In addition to any other punishment prescribed by law for
violations of subsection A of this section, he or she is liable in
treble damages for the injury done, to be recovered in a civil
action by the owner of such property or public officer having
charge thereof.
J.D. also filed a civil suit against Respondent which was settled.
The details are not part of the record before this Court.
7. Our focus on the criminal proceedings is not meant to undermine the seriousness of the protective order. However, the criminal
proceedings and the protective order are based on the same set of
facts.
8. J.D.’s post-event symptoms are consistent with The National
Intimate Partner and Sexual Violence Survey which made the following findings:
• Eighty-one percent of women who experienced rape, stalking,
or physical violence by an intimate partner reported significant
short- or long-term impacts, such as post traumatic stress disorder symptoms and injury. Thirty-five percent of men report such
impacts of their experiences.
...
• Men and women who experienced these forms of violence
were more likely to report frequent headaches, chronic pain, difficulty with sleeping, activity limitations, poor physical health,
and poor mental health than men and women who did not experience these forms of violence.
Centers for Disease Control and Prevention, National Intimate Partner
and Sexual Violence Survey 2010 Summary Report (2010) available at
Vol. 85 — No. 12 — 4/19/2014
http://www.cdc.gov/violenceprevention/pdf/cdc_nisvs_overview_
insert_final-a.pdf.
9. The two years in the deferment order coincide with the time for
the continuation of the protective order.
10. In opening statements, Respondent’s attorney gives a different
story. He contends J.D. and Respondent struggled over a wine bottle,
Respondent let go, and the wine bottle hit J.D. across the nose, resulting in the police being called. There is no evidence in the record that a
struggle over a wine bottle caused J.D.’s injuries, and it is belied by the
evidence and the facts underlying Respondent’s plea to the criminal
charges.
11. Rarely, if ever, has there been a character witness in a bar proceeding who was not surprised by a respondent’s misconduct and that
did not vouch for a respondent’s fitness to practice law, see State ex rel.
Okla. Bar Ass’n v. Shofner, 2002 OK 84, ¶ 9, 60 P.3d 1024, 1028, lessening
the value of character testimony. This is especially true when, like here,
two of the character witnesses were chairs of the Tulsa County Grievance Committee, which this Court chastised for conducting its own
grievance process, State ex rel. Okla. Bar Ass’n v. Downes, 2005 OK 33,
¶¶ 24-27, 121 P.3d 1058, 1064-65, and had to be admonished again
before discontinuing the process. State ex rel. Okla. Bar Ass’n v. Whitebook, 2010 OK 72, ¶¶ 1-8, 242 P.3d 517, 524-26 (Kauger, J. concurring in
part and dissenting in part).
12. Rule 7.2 requires a district court clerk, when a lawyer is the
subject of a conviction or deferred sentence, to forward “certified copies of the Judgment and Sentence on a plea of guilty, order deferring
judgment and sentence, indictment or information and judgment and
sentence of conviction to the Chief Justice of the Supreme Court and to
the General Counsel of the Oklahoma Bar Association within five (5)
days after said conviction. . . .”
13. In 2011, there were 114 deaths in Oklahoma as a result of
domestic violence. Oklahoma Domestic Violence Fatality Review
Board, 2012 Annual Report 2 (2012), http://www.oag.state.ok.us/
oagweb.nsf/0/58705086998c136086257ae70065cd21/$FILE/2012%20
DVFRB%20Annual%20Report.pdf. “Fifty-two percent of the intimate
partner homicide victims were attempting to leave or had left the perpetrator at the time of their death.” Id. at 7.
2014 OK 26
IN RE: Rules for Mandatory Continuing
Legal Education
SCBD No. 3319. April 7, 2014
ORDER GRANTING AMENDMENT TO
RULES FOR MANDATORY CONTINUING
LEGAL EDUCATION
This matter comes on before this Court upon
an Application of the Oklahoma Bar Association House of Delegates to amend Rules 2 (a)
and (d), and by the Oklahoma Bar Association
Board of Governors to amend Rules 2 (c), 5,
and 7 (Regs. 3.2, 4.1.3, 4.1.5, 4.1.6, 4.1.8, 4.1.9,
and 5) of the Rules for Mandatory Continuing
Legal Education, 5 O.S. Supp. 2012, ch. 1, app.
1-B. This Court finds that it has jurisdiction
over this matter.
IT IS THEREFORE ORDERED, ADJUDGED
AND DECREED by the Court that Rules 2 (a),
(c) and (d), 5 and 7 (Regs. 3.2, 4.1.3, 4.1.5, 4.1.6,
4.1.8, 4.1.9, and 5) of the Rules of Mandatory
Continuing Legal Education, 5 O.S. Supp. 2012,
ch. 1, app. 1-B, is hereby amended as set out in
its entirety on Exhibit “A” attached hereto.
DONE BY ORDER OF THE SUPREME COURT
IN CONFERENCE this 7th day of April, 2014.
The Oklahoma Bar Journal
/s/ Tom Colbert
911
CHIEF JUSTICE
CONCUR: Colbert, C.J.; Reif, V.C.J.; Kauger,
Watt, Winchester, Edmondson, Taylor,
Gurich, JJ.
NOT PARTICIPATING: Combs, J.
(g) Any person claiming an exemption
hereunder is required to file an annual
report in compliance with these rules and
regulations.
“RULE 2. SCOPE AND EXEMPTIONS.
Rule 5. ANNUAL REPORT
(a) Effective January 1, 2015, except as provided herein, these rules shall apply to
every active and senior member of the
Oklahoma Bar Association as defined by
Article II of the Rules Creating and Controlling the Oklahoma Bar Association.
On or before February 15th of each year,
every active and senior member of the
Oklahoma Bar Association, who did not
attain age 65 before or during the preceding calendar year, shall report in such a
form as the MCLEC shall prescribe concerning his or her completion of accredited
legal education during the preceding calendar for the current year or exemption
from the requirements of these rules. An
attorney reporting attainment of age sixtyfive (65) need only make one (1) such
annual report.
(b) An attorney is exempt from the educational requirements of these rules for the
calendar year during which he or she was
first admitted to practice.
(c) All Judges who, during the entire reporting period, are by Constitution, law or
regulation prohibited from the private
practice of law, members of the United
States Congress, members of the Oklahoma
Legislature, the Attorney General of the
State of Oklahoma, and members of the
armed forces on full time active duty, and
members of the Board of Governors of the
Oklahoma Bar Association, members of the
Professional Responsibility Commission
and members of the Professional Responsibility Tribunal, during their year(s) of service, shall be exempt from the educational
requirements of these rules.
(d) An attorney who attains the age of sixty-five (65) years of age before or during
the calendar year which is being reported
is exempt from all requirements of these
rules except as provided in Rule 5. An
attorney having been granted an exemption based on attaining age 65 prior to January 1, 2015, shall be granted a continuing
exemption.
(e) An attorney who, during the entire
reporting period, is a nonresident of the
State of Oklahoma and did not practice law
in the State of Oklahoma is exempt from the
educational requirements of these rules.
(f) An attorney who files an affidavit with
the Commission on Mandatory Continuing
Legal Education of the Oklahoma Bar Association stating that the attorney did not
practice law during the reporting period is
912
exempt from the educational requirements
of these rules.
Rule 7. REGULATIONS
Regulation 3
3.2 Other requests for substituted compliance, partial waivers, or other exemptions
for hardship or extenuating circumstances
may be granted by the Commission upon
written application of the attorney and
may likewise be reviewed by the Board of
Governors and of the Oklahoma Bar Association. Other substitute forms of compliance may be granted for members with
permanent or temporary physical disabilities (based upon a written confirmation
from his or her treating physician) which
makes attendance at regular approved CLE
programs difficult or impossible.
Regulation 4
4.1.1 The following standards will govern
the approval of continuing legal education
programs by the Commission.
4.1.2 The program must have significant
intellectual or practical content and its primary objective must be to increase the participant’s professional competence as an
attorney.
4.1.3 The program must deal primarily
with matters related to the practice of law,
professional responsibility or ethical obligations of attorneys. Programs that cross
academic lines may be considered for
approval.
The Oklahoma Bar Journal
Vol. 85 — No. 12 — 4/19/2014
4.1.4 The program must be offered by a
sponsor having substantial, recent, experience in offering continuing legal education
or demonstrated ability to organize and
present effectively continuing legal education. Demonstrated ability arises partly
from the extent to which individuals with
legal training or educational experience are
involved in the planning, instruction and
supervision of the program.
4.1.5 The program itself must be conducted
by an individual or group qualified by
practical or academic experience. The program,_ including the named advertised
participants, must be conducted substantially as planned, subject to emergency
withdrawals and alterations.
a.Live interactive webcast seminars,
webcast replay seminars, live teleconferences and teleconference replays. If
approved, an attorney may earn credit
for seminars provided by these various
delivery methods without an annual
limit.
b.Online, on-demand seminars and
downloadable podcasts. If approved,
an attorney may receive up to six
approved credits per year for these
types of electronic-based programs.
4.1.6 Thorough, high quality, readable, and
carefully prepared written materials must
be made available to all participants at or
before the time the course is presented,
unless the absence of such materials is recognized as reasonable and approved by the
Commission MCLE Administrator. A mere
outline without citations or explanatory
notations will not be sufficient.
4.1.7 The program must be conducted in a
comfortable physical setting, conducive to
learning and equipped with suitable writing surfaces.
4.1.8 Approval may be given for programs
where audiovisual recorded or reproduced
material is used. Television Video programs and motion picture programs with
sound shall qualify for CLE credit in the
same manner as a live CLE program provided:
a.the original CLE program was approved for CLE credit as provided in
these regulations or the visual recorded
video program has been approved by
the Commission under these rules,
and
b.each person attending the visual presentation video program is provided
written material as provided required
in Regulation 4.1.6 and
c.each program is conducted in a location as required in Regulation 4.1.7
and
d.there are a minimum of five (5) persons
enrolled and in attendance at the presentation of the visually recorded video
Vol. 85 — No. 12 — 4/19/2014
program unless viewed at the Oklahoma Bar Center or sponsored by a county bar association in Oklahoma.
4.1.9 Programs that cross academic lines
may be considered for approval. Approval
for credit may also be granted for the following types of electronic-based CLE programs:
Such programs must also meet the criteria established in the Rules of the
Oklahoma Supreme Court for Mandatory Continuing Legal Education, Rule
7, Regulation 4, subject to standard
course approval procedures and appropriate verification from the course
sponsor.
1.The target audience must be attorneys.
2.The course shall provide high quality
written instructional materials. These
materials may be available to be
downloaded or otherwise furnished
so that the attorney will have the ability to refer to such materials during
and subsequent to the seminars.
3.The provider must have procedures
in place to independently verify an
attorney’s completion of a program.
Verification procedures may vary by
format and by provider. An attorney
affidavit attesting to the completion of
a program is not by itself sufficient.
4.If an online, on demand seminar is
approved, it is approved only for
twelve (12) months after the approval is granted. The sponsor may submit an application to have the course
considered for approval in subsequent years.
The Oklahoma Bar Journal
913
Regulation 5.
On or before February 15th of each year,
every active member, under sixty-five (65)
years of age, or of the Oklahoma Bar Association shall submit a report in a form as
the Commission shall provide concerning
such attorney’s completion of, exemption
from or approved substitute for the minimum hours of instruction, including reference to hours earned during the preceding
year and hours to be carried forward to the
next year. An attorney reporting attainment of age sixty-five (65), need only make
one (1) such annual report.
SUBSTITUTED COMPLIANCE
POLICIES
The following regulations apply to technology-based CLE or distance learning CLE.
The following Policies have been adopted
by the Mandatory Continuing Legal Education Commission which interpret and
supplement the Rules and Regulations
concerning substituted compliance with
the Mandatory Continuing Legal Education requirements:
1. Approval for credit may be granted, on a
course-by-course basis, for live interactive,
audio-only teleconference courses such as
those sponsored and provided by the
American Bar Association. , live webcasts,
live webinars, live webcast replays or live
webinar replays which otherwise meet the
criteria established in the Rules of the
Oklahoma Supreme Court for Mandatory
Continuing Legal Education, Rule 7, Regulation 4, subject to standard course approval procedures and appropriate certification
of course completion. There is no limit to
the number of credits that may be earned
by an attorney per year from these delivery
methods.
2. Approval for credit may be granted, for
no more than six MCLE credits per year,
for computer-based or other technologybased prerecorded legal education programs which otherwise meet the criteria
established in the Rules of the Oklahoma
Supreme Court for Mandatory Continuing
Legal Education, Rule 7, Regulation 4.,
subject to standard course approval procedure and appropriate certification by the
sponsor of course completion.. Approval of
such courses will be good for one year
914
from the live recorded date, subject to
approval by the MCLE Administrator.
3. Other substitute forms of compliance
may be granted for members with a permanent or temporary physical disabilities
(based upon a doctor’s certification) which
makes attendance at regular approved CLE
programs difficult or impossible, as set
forth in the Rule 7, Regulation 3.
4. If the CLE course provider has not
secured course approval or rejection for
MCLE credit in Oklahoma, the attorney
attendee, in order to receive MCLE credit,
must submit a request for MCLE credit and
course approval on forms which will be
supplied by the MCLE office, which application must be submitted with a $15 per
course application fee.”
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The Oklahoma Bar Journal
Vol. 85 — No. 12 — 4/19/2014
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Vol. 85 — No. 12 — 4/19/2014
The Oklahoma Bar Journal
915
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to: OCDLA, PO BOX 2272, OKC, OK 73101
916
The Oklahoma Bar Journal
Vol. 85 — No. 12 — 4/19/2014
2014 CRIMINAL DEFENSE INSTITUTE SCHEDULE
Thursday, June 26, 2014
M ain Session
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Vol. 85 — No. 12 — 4/19/2014
The Oklahoma Bar Journal
917
Court of Criminal Appeals Opinions
2014 OK CR 2
MAXIMINO MANUEL SOTO, Appellant,
vs. THE STATE OF OKLAHOMA, Appellee.
No. M-2012-1095. March 27, 2014
OPINION
A. JOHNSON, JUDGE:
¶1 Appellant Maximino Manuel Soto appeals
from his misdemeanor Judgment and Sentence
imposed by the Honorable Ryan D. Reddick,
Associate District Judge, in Case No. TR-2012376 in the District Court of Beaver County. Soto
was convicted in a non-jury trial of Overweight
Vehicle in violation of 47 O.S.2011, § 14-109,
and was sentenced to a fine of $290.00 and
costs and fees of $206.50.
FACTS
¶2 On May 17, 2012, Soto was driving a
refuse collection vehicle for his employer,
Seward County Waste Management Services.
That company contracts with cities in the Oklahoma panhandle to collect refuse from residences and businesses and haul it to a landfill in
Seward County, Kansas. Soto was stopped by an
Oklahoma Highway Patrol trooper on U.S. Highway 83 in Beaver County, Oklahoma. The trooper’s observation of the vehicle’s tires had led
him to believe it might exceed the allowable
weight set by 47 O.S.2011, § 14-109. Weighing of
the truck confirmed it was overweight.
¶3 On appeal Soto argues, as he did below,
that the vehicle weight limitations of Section
14-109 did not apply to his truck because it was
a “refuse collection vehicle” and so falls within
an exception to that statute providing:
E. Exceptions to this section will be:
1. Utility or refuse collection vehicles used
by counties, cities, or towns or by private
companies contracted by counties, cities, or
towns if the following conditions are met:
a. calculation of weight for a utility or refuse
collection vehicle shall be “Gross Vehicle
Weight.” The “Gross Vehicle Weight” of a
utility or refuse collection vehicle may not
exceed the otherwise applicable weight by
more than fifteen percent (15%). The weight
on individual axles must not exceed the
manufacturer’s component rating which
918
includes axle, suspension, wheels, rims,
brakes, and tires as shown on the vehicle
certification label or tag, and
b. utility or refuse collection vehicles operated under these exceptions will not be
allowed to operate on interstate highways.
¶4 The State does not deny Soto’s truck was
a “refuse collection vehicle” within the meaning of the statutory exception, but argues the
truck did not qualify for that exception because
its owner had not purchased an overload permit pursuant to Section 14-109(G):
G. Utility or refuse collection vehicles,
vehicles transporting timber, pulpwood,
and chips in their natural state, vehicles
transporting oil field equipment or equipment used in oil and gas well drilling or
exploration, vehicles transporting rock,
sand, gravel, coal, and flour and vehicles
transporting grain, operating under exceptions shall purchase an annual special overload permit for One Hundred Dollars
($100.00). …
¶5 The single issue raised here is one of statutory construction: Does a truck owner qualify
for the exemption provided in subsection E
without having purchased the special overload
permit required by subsection G?
¶6 We answer that question in the negative
and affirm Soto’s conviction and the fine
imposed.
¶7 The fundamental rule of statutory construction is to ascertain and give effect to the
intention of the Legislature as expressed in the
statute. State v. Anderson, 1998 OK CR 67, ¶ 3,
972 P.2d 32, 33. Statutes are to be construed
according to the plain and ordinary meaning of
their language. Wallace v. State, 1997 OK CR 18,
¶ 4, 935 P.2d 366, 369-70.
¶8 Judge Reddick did not err in interpreting
47 O.S.2011, § 14-109. The Legislature obviously intended, and the plain language of the statute states, that subsection E is providing an
“exception” to Section 14-109 weight limits for
refuse collection vehicles. 47 O.S.2011, §
14-109(E). The Legislature obviously intended,
and the plain language of subsection G states,
that refuse collection vehicles “operating under
exceptions” shall purchase an annual special
The Oklahoma Bar Journal
Vol. 85 — No. 12 — 4/19/2014
overload permit for $100.00. 47 O.S.2011, §
14-109(G).
DECISION
¶9 The Judgment and Sentence of the District Court of Beaver County in Case No.
TR-2012-376 is AFFIRMED. Pursuant to Rule
3.15, Rules of the Oklahoma Court of Criminal
Appeals, Title 22, Ch.18, App. (2014), the MANDATE is ORDERED issued upon the filing of
this decision.
AN APPEAL FROM THE DISTRICT COURT
OF BEAVER COUNTY
THE HONORABLE RYAN D. REDDICK,
ASSOCIATE DISTRICT JUDGE
APPEARANCES AT TRIAL
Daniel H. Diepenbrock, Attorney at Law, 223
North Kansas, P.O. Box 2677, Liberal, KS 67095,
Counsel for Defendant
Abby M. Cash, Assistant District Attorney, Beaver County Courthouse, 111 West 2nd Street,
P.O. Box 849, Beaver, OK 73932, Counsel for the
State
APPEARANCES ON APPEAL
Daniel H. Diepenbrock, Attorney at Law, 223
North Kansas, P.O. Box 2677, Liberal, KS 67095,
Counsel for Appellant
E. Scott Pruitt, Attorney General of Oklahoma,
Jennifer B. Miller, Assistant Attorney General,
313 N.E. 21st Street, Oklahoma City, OK 73105,
Counsel for the State
OPINION BY: A. JOHNSON, J.
LEWIS, P.J.: Concur
SMITH, V.P.J.: Concur
LUMPKIN, J.: Concur
C. JOHNSON, J.: Concur
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Vol. 85 — No. 12 — 4/19/2014
Court of Civil Appeals Opinions
2014 OK CIV APP 25
IN RE THE MARRIAGE OF AMANDA
MARIA VARBEL, NOW PATTISON, AND
BRICE DUANE VARBEL: AMANDA
MARIA VARBEL, NOW PATTISON,
Petitioner/Appellee, vs. BRICE DUANE
VARBEL, Respondent/Appellant.
Case No. 110,078. February 14, 2014
APPEAL FROM THE DISTRICT COURT OF
KAY COUNTY, OKLAHOMA
HONORABLE W. LEE STOUT, TRIAL JUDGE
AFFIRMED
Jack De McCarty, MCCARTY & RIGDON,
Newkirk, Oklahoma, for Petitioner/Appellee,
Jarrod Heath Stevenson, STEVENSON LAW
FIRM, P.L.L.C., Oklahoma City, Oklahoma, for
Respondent/Appellant.
Wm. C. Hetherington, Jr., Vice-Chief Judge:
¶1 Brice Varbel (Father) appeals an order
modifying previously entered terms of a
Decree regarding custody and his visitation
with JV (Child). Father alleges the trial court’s
custody modification is contrary to the best
interest of Child and violates statute by
expressing a preference for public schooling.
At the outset, we must establish the nature of
the matter before us.
¶2 Amanda Varbel (Mother) and Father wed
on December 1, 2005, and Child was born in
September of 2006. On June 4, 2007, Mother
filed a Petition for Dissolution of Marriage and
the marital union was dissolved in a Decree
filed on March 12, 2008.1 Mother was restored
to her maiden name, child support calculations
were made, and the parties’ debts and property
were divided. The Decree provides Mother is
“to remain as the primary custodian of the
minor child subject to [Father’s] frequent and
liberal visitation” pursuant to an attached Kay
County Standard Visitation Schedule and,
when Child reaches 24 months of age, “a plan
of shared parenting shall be initiated whereby
each party shall enjoy alternating weeks of
visitation with the minor child with the parties
meeting in Stillwater, Oklahoma for the purpose of child exchange” and no extended summer visitation is to occur “so long as the shared
Vol. 85 — No. 12 — 4/19/2014
custody plan is in place.” In his Brief in Chief,
Father states: “Both parties were found fit and
awarded joint custody,” and the parties appear
to have treated the schedule of alternating visitation as a kind of joint custody.
¶3 The Decree contains provisions generally
encouraging cooperation but does not contain
provisions addressing any form of shared decision making. Although the above-quoted language refers to “shared parenting” and “shared
custody,” there is no joint custody plan as
described in 43 O.S.Supp.2009 § 1092 in the
appellate record. Consequently, we conclude
the record does not support an assertion the
Decree established joint custody. Instead, it
appears the Decree provides for primary custody of Child with Mother, and what began as
standard visitation for Father became more
extended visitation once Child attained age 2.
This distinction is important because it affects
both what the parties needed to demonstrate
for a change in the Decree’s original provisions
and it affects our review.3
STANDARD OF REVIEW
¶4 Custody and visitation are matters of
equity and are left to the sound discretion of
the trial court. Kahre v. Kahre, 1995 OK 133, ¶ 19,
916 P.2d 1355, 1360. “Accordingly, unless we
determine that the trial court’s decision is
clearly against the weight of the evidence so as
to constitute an abuse of discretion, it will not
be disturbed. Boatsman v. Boatsman, 1984 OK
74, 697 P.2d 516.” Williamson v. Williamson, 2005
OK 6, ¶ 5, 107 P.3d 589, 591. “An abuse of discretion occurs when a decision is based on an
erroneous conclusion of law, or where there is
no rational basis in evidence for the ruling.” In
the Matter of BTW, 2008 OK 80, ¶ 20, 195 P.3d
896, 908.
¶5 As stated Fox v. Fox, 1995 OK 87, ¶ 7, 904
P.2d 66, 69:
The evidentiary requirements for a change
of a permanent custody order are well
established. In Gibbons v. Gibbons, [1968 OK
77], 442 P.2d 482 (Okla.1968), we held that
the parent asking for modification must
establish: 1) a permanent, substantial and
material change in circumstances; 2) the
change in circumstances must adversely
affect the best interests of the child; and, 3)
The Oklahoma Bar Journal
921
the temporal, moral and mental welfare of
the child would be better off if custody is
changed. Finding that the paramount consideration in awarding custody on a motion
to modify is what appears to be in the best
interests of the child in respect to its temporal, mental and moral welfare, and the
entire determination must be in light of
what is in the child’s best interest, Gibbons
was reaffirmed in David v. David, [1969 OK
164], 460 P.2d 116 (Okla.1969). In David v.
David, [1969 OK164, ¶ 8], 460 P.2d 116, 117
(Okla.1969), we said, “The law is clear that
in a hearing upon a motion to modify, the
burden is upon the applicant to show a
substantial change in conditions since the
entry of the last order or decree which
bears directly upon the welfare and best
interest of the child.” And more recently in
Gorham v. Gorham, [1984 OK 90], 692 P.2d
1375 (Okla.1984), we emphasized the necessity to show a direct and adverse effect on
the child’s best interests.
¶6 “One who alleges error in the trial court’s
determination on visitation must put forth the
evidence upon which he relies and must affirmatively show how the determination is contrary to the best interest of the child.” K.R. v.
B.M.H., 1999 OK 40, ¶ 18, 982 P.2d 521, 524.
(Citation omitted.) “The trial court is entitled to
choose which testimony to believe as the judge
has the advantage over this Court in observing
the behavior and demeanor of the witnesses.”
Mueggenborg v. Walling, 1992 OK 121, ¶ 7, 836
P.2d 112, 114.
FACTS
¶7 The parties’ current dispute began over
Child’s schooling. Mother, a public school
graduate, favors a public school education for
Child. Father was home schooled to an eighth
grade equivalency and then was advanced
enough to enter public school at grade nine. He
favors home schooling.
¶8 In April of 2011, Mother informed Father
she wanted Child to attend a Ponca City Public
School System Pre-K program. Father opposed
the enrollment, told her he thought home
schooling was best, and claimed it would cause
his visitation to be limited to weekends. Mother testified he became “a little irate,” she discontinued the conversation, and she told him,
“Okay, well, obviously we can’t come to an
agreement, so I’ll just file a motion and bring it
to court.” Father testified that when he tried to
922
discuss public schooling versus home schooling with Mother, she told him she would take
him to court and hung up on him. On the day
after the April telephone conversation, Mother
enrolled Child in the Pre-K program which
was to begin on August 10, 2011.
¶9 On June 13, 2011, Mother filed a Motion to
Modify Decree of Divorce, claiming a permanent, substantial and material change of circumstances affecting the best interest of Child
required a change in custody and visitation,
namely, Child’s attainment of school age. In
her motion, she seeks “full physical custody”
of Child and asks that Father be awarded visitation according to the Kay County Standard
Visitation Schedule provisions and in conjunction with Child’s educational enrollment in the
Ponca City public school system.
¶10 In his response to Mother’s motion,
Father also claims there had been a permanent,
substantial, and material change of circumstances. He asserts Child would be “unquestionably better off” if placed in his “full legal
custody.” Father alleges Mother has “made
every effort” to minimize his involvement in
Child’s life and claims “[t]here are no factors
that would justify” Mother being “granted
legal custody.”4
¶11 In a “Counterclaim For Legal Custody”
filed on July 25, 2011, Father alleges various
reasons5 Mother’s custody of Child should be
disfavored. Father argues Child was enrolled in
a public school Pre-K program by Mother so as
to minimize his involvement and that he and
Child’s paternal grandmother have initiated an
education plan for Child’s transition to school.
He also cites efforts by Child’s paternal grandparents (including their relocation near him and
the alteration of his father’s work participation)
which allow them to provide care and educational assistance, the presence of other family
members near his location, how child has only
been cared for by family members (as opposed
to day care) when with him, and his flexibility at
work as factors favoring his own primary custody of Child. He contends Child has thrived
with the current visitation schedule, he should
have “full legal custody,” and Mother should be
granted liberal visitation.
¶12 On August 9, 2011, the trial court conducted a scheduling hearing and entered an
interim order. A minute order for that date provides Father would have visitation with Child
The Oklahoma Bar Journal
Vol. 85 — No. 12 — 4/19/2014
every other weekend from Friday at 6 p.m.
until Sunday at 6 p.m.
¶13 Hearings on Mother’s motion to modify
began on August 30, 2011, and were completed
on October 6, 2011. At completion of the first
phase of hearing, following a request by
Father’s counsel and without any objection by
Mother, the trial court appointed a guardian ad
litem. Father’s counsel then noted the parties
were off record at the time of entry of the
August 9, 2011 interim order and renewed an
objection to the interim order, claiming it had
allowed Mother to “unilaterally” change the
visitation schedule. When stating the objection,
counsel also claimed Father had offered a solution on August 9, 2011, which would allow
Child to keep on track with home schooling
which had been overruled by the trial court. At
the close of the first phase of hearing, the trial
court ordered Father to have visitation every
weekend.
¶14 During hearings, the trial court heard testimony about the parties’ handling of issues
such as social interactions, activities, and nutrition/meal habits. The trial court also heard testimony about the parties’ respective educations,
employment, and work schedules. The trial
court heard other evidence relative to the issues
raised in the counter motions for modification.
¶15 Since age one, Child has attended day
care when Mother was at work. After the marital dissolution, Mother lived with her parents
until April of 2010, when they relocated to
Louisiana due to her Father’s job. For two
years prior to that time Mother dated Ted
Rains (Rains), and when her parents moved,
she and Child began to live with Rains. She
and Rains were not engaged or married. She
takes Child to school in the morning. Rains acts
as a step parent and sometimes transports
Child for visitation exchanges in Stillwater,
Oklahoma when Mother’s work schedule conflicts with the visitation schedule. He also picks
child up from day care after his work time when
Mother’s schedule prevents her from doing so.
Mother testified Child receives Sooner Care coverage for medical insurance but had no other
state assistance enrollment. Mother cited socialization as one factor in favor of public school
attendance. She provided as exhibits several
photographs of Child with other children, who
Mother described some as “cousins, [Rains’s]
side of the family, nieces and nephews.” One
photograph label identifies the person with
Child as “Grandma Lisa ([Rains’s] Mom).”
Vol. 85 — No. 12 — 4/19/2014
¶16 Child’s maternal grandmother, Debra S.
Pattison (Pattison), testified she moved in April
of 2010 because the facility where her husband
worked closed. Since relocating, she had visited Mother and Child three to five times, most
recently in May of 2011. She felt Rains was “a
good guy,” trusted him, and did not feel there
was anything inappropriate about the way he
related to Child. Pattison reported Mother and
Rains started dating when Child was about 18
months to two years old. She did not know
Child was being home schooled. From the time
of the Decree in 2008 until the early part of
2010, Pattison stated Mother had used day care
for Child only when she worked, and she
sometimes had watched Child when Mother
worked or if she had to run an errand. Mother
then rested.
¶17 Father testified that either he or his
mother care for Child when she is with him.
Father previously trained for and obtained certification as a teacher for grades 6 through 12,
but he allowed the certification to lapse due to
his current employment. Father has had custody of another child, KV, who is about two
and a half years older than Child, since KV was
about two years old. KV, who has medical
problems, is home schooled. Father describes
KV and Child as “very close.” Father cites his
work flexibility as allowing him to participate
in activities with Child and allowing him to
promote Child’s contact with Mother.
¶18 Father put on fairly extensive evidence
of the type of materials used for the home
schooling, which included materials from an
accredited system, and privately accumulated
resources such as computer learning programs,
flash cards, books, and similar items. Father’s
mother, Elizabeth Varbel, a lawyer by training,
home schooled Father and his sister. She and
Father provide home schooling for KV and
Child. She described various educational
resources she uses for home schooling. Child
was age three and a half when she began teaching letters and numbers. Father and his mother
both testified they thought Child had regressed
educationally and they felt the Pre-K program
was below Child’s skill level. Father’s parents,
his sister, and her husband and children live
near him. KV’s grandmother and her husband
are active in both KV and Child’s lives.
¶19 The Guardian Ad Litem, Chris Landes
(GAL), filed a report on October 6, 2011, the
day hearing on Mother’s motion reconvened.
In his report he discounts, contradicts, or finds
The Oklahoma Bar Journal
923
irrelevant several factors Father cited in his
opposition to Mother’s motion, finds both parties fit, states both have support systems to
help with caring for Child, and has no concerns
about their respective homes. GAL notes Child
has thrived in the alternating visitation plan
and recommends it be continued. The GAL
also testified, and he was questioned about his
observations and conclusions. GAL felt Child
should be placed in Father’s primary care if the
alternating visitation schedule was not used
and the placement would be in Child’s best
interest. He cited Father’s ability to provide
additional visitation as situations arose.
¶20 Following hearing, the trial court modified the Decree6 by placing primary custody
with Mother and providing for visitation by
Father every weekend from 6 p.m. on Friday
until 6 p.m. on Sunday, any Federal or State
Monday holidays are considered part of the
weekend with a 6 p.m. Tuesday return time,
and the entire summer vacation excepting two
weeks in June and two weeks in July. Mother is
ordered to provide Father at least thirty days’
notice of which two weeks she has chosen and
she may not choose consecutive two week
periods such as last two weeks in June and the
first two in July. An attached Holiday Visitation Schedule governs all other visitation7 and
sets up a summer visitation schedule if notice
is not given timely.
THE APPEAL
¶21 Father appeals, arguing the trial court’s
modification of the Decree fails to make a
determination in Child’s best interest and it
expresses a bias or preference in favor of public
schooling. He alleges Mother unilaterally discontinued the system of alternating weeks of
visitation in April of 2011 by enrolling Child in
a Pre-K program. The record does not support
that assertion. According to the evidence
adduced at the hearings, Child’s first day of
attendance at the Pre-K program was August 10,
2011, that is the day after the trial court entered
the interim order changing Father’s visitation
to weekends and twenty days before hearings
began on the Mother and Father’s respective
motions.
¶22 Father also complained of a period when
Mother did not keep to the alternating week
schedule due to Child’s infection with head
lice and the failure of the first attempted treatments for the condition. The dates this occurred
were not elicited in the testimony.
924
¶23 Section 112(D)(1) of Title 43 provides that
“[e]xcept for good cause shown, a pattern of
failure to allow court-ordered visitation may
be determined to be contrary to the best interests of the child and as such may be grounds
for modification of the child custody order.”
On its face, this statute recognizes a pattern of
conduct may serve as the basis for a custody
modification, and it also contains an exception
allowing good cause to be shown for interrupting visitation. “’Good cause’ is determined by
application of equitable principles.” King v. King,
2005 OK 4, ¶ 18, 107 P.3d 570, 578. The record
does not demonstrate a pattern of denial of visitation and good cause was shown for the single
episode of temporary denial of visitation.
¶24 Both parties cite Child’s attainment of
school age as a change of condition. However,
the mere fact there has been a change of condition since entry of the last order, standing
alone, is not sufficient for a change of custody
because, as cases have long recognized, the
change also must adversely affect a child’s temporal, moral and mental welfare so as to necessitate the trial court’s alteration of the current
custodial placement. See, e.g., Daniel v. Daniel,
2001 OK 117, 42 P.3d 863; Fox v. Fox, 1995 OK
87, 904 P.2d 66; Pirrong v. Pirrong, 1976 OK 36,
552 P.2d 383; Owens v. Owens, 1972 OK 26, 494
P.2d 318; Gibbons v. Gibbons, 1968 OK 77, 442
P.2d 482; Johnson v. Wingert, 2011 OK CIV APP
128, 268 P.3d 145. The record does not support
a conclusion Child has suffered an adverse
effect necessitating a change in the current custodial placement.
¶25 Father contends the trial court exhibited
an impermissible preference for public schooling over home schooling. His mother testified
she had purchased the Calvert home schooling
system in June of 2011, Child had begun to use
it, and if the system, which was one approved
by the State of Oklahoma, was used for two
years Child might have been allowed to skip a
grade upon changing to public school if she
was ahead of her cohort in the public school. In
other words, both Father and his mother considered Child as capable of excelling. However,
the trial court also heard evidence that the public school system was considering changes
which would result in children attaining an
even later age before entering school, i.e., making a policy decision resulting in more maturity
at each subsequent grade level. The record
shows the trial court considered all the evidence concerning both educational approaches.
The Oklahoma Bar Journal
Vol. 85 — No. 12 — 4/19/2014
As noted above, primary custody in the Decree
was placed with Mother. Cooperative decisionmaking is a worthy and important goal, but as
Child’s primary custodian, participation in the
Pre-K program is within the purview of her
control. As Mother points out, Father testified
he had planned to home school Child only
until first grade, only a short time beyond preschool. However, Father did qualify his plan as
an “initial” one, subject to revision. Even so, the
selection of public school for early education by
Mother is not demonstrated to be adverse to
Child’s interest so as to qualify as a change of
condition. Father’s job, which he has held since
2007, i.e., before the marital dissolution, may
allow him more flexibility to facilitate visitation,
but that factor alone is insufficient to justify a
change of custody under the circumstances and
it is not a change in the conditions post-dating
the Decree.
¶26 Lastly, Father raises an issue regarding
alleged “violence” by Mother towards KV, presumably occurring while the parties were married. The trial court stopped the line of inquiry
and refused to allow exploration of facts predating the 2008 marital dissolution. As to “Rulings
on Evidence,” the Legislature has provided, in
12 O.S.2011 § 2104 that:
A. Error may not be predicated upon a ruling which admits or excludes evidence
unless a substantial right of a party is
affected, and:
*****
2. If the ruling is one excluding evidence,
the substance of the evidence was made
known to the judge by offer or was apparent from the context within which questions were asked.
Father did not make an offer of proof regarding
excluded evidence of such behavior by Mother
nor did he attempt to elicit any evidence of more
recent events after the period excluded. We will
not address an issue not properly preserved. See
Irwin v. Irwin, 1966 OK 146, 416 P.2d 853.
CONCLUSION
¶27 Father has not presented clear and convincing evidence of a change of condition such
that the order of the trial court is contrary to
the weight of the evidence and results in an
abuse of discretion. The order is AFFIRMED.
JOPLIN, P.J., and BUETTNER, J., concur.
Vol. 85 — No. 12 — 4/19/2014
Wm. C. Hetherington, Jr., Vice-Chief Judge:
1. Contrary to the claim in Father’s statement of facts in his Brief in
Chief, paragraph 3 of the Decree provides for payment of support.
However, support was not an issue raised at hearing and it is not an
issue on appeal.
2. In particular, the appellate record lacks a joint custody plan
meeting the requirements of 43 O.S.Supp.2001 § 109 which provide:
C. If either or both parents have requested joint custody, said
parents shall file with the court their plans for the exercise of
joint care, custody, and control of their child. The parents of the
child may submit a plan jointly, or either parent or both parents
may submit separate plans. Any plan shall include but is not
limited to provisions detailing the physical living arrangements
for the child, child support obligations, medical and dental care
for the child, school placement, and visitation rights. A plan shall
be accompanied by an affidavit signed by each parent stating
that said parent agrees to the plan and will abide by its terms.
The plan and affidavit shall be filed with the petition for a
divorce or legal separation or after said petition is filed.
D. The court shall issue a final plan for the exercise of joint care,
custody, and control of the child or children, based upon the plan
submitted by the parents, separate or jointly, with appropriate
changes deemed by the court to be in the best interests of the
child. The court also may reject a request for joint custody and
proceed as if the request for joint custody had not been made.
3. A modification of initial placement of primary custody with one
parent requires a showing of a permanent and material change of
conditions and that the child would be substantially better off with the
change. When joint custody is ended, the trial court applies the “best
interests of the child” test pursuant to 43 O.S.Supp.2009 § 109(A), just
as it would do in a first instance custody determination. Daniel v. Daniel, 2001 OK 117, ¶ 21, 42 P.3d 863, 871.
4. As described above, in making their claims and assertions, both
parties mistakenly characterize the custody order as a joint custody
order.
5. Among the reasons he cites are Mother’s cohabitation with a
man, alleged exposure to tobacco smoke, and her lack of any immediate family in the area.
6. The trial court entered other findings, including those regarding
child support and expenses for such things as child care and health
costs, none of which are at issue in this appeal.
7. The schedule is tied to school schedules for Child and KV, her
older half-sibling.
2014 OK CIV APP 26
R & R ENGINEERING CO., INC., Plaintiff/
Appellant, vs. BOARD OF REVIEW OESC,
OKLAHOMA EMPLOYMENT SECURITY
COMMISSION, Defendant/Appellee, and
DAVID A. BOOTH, Defendant.
Case No. 110,355. February 14, 2014
APPEAL FROM THE DISTRICT COURT OF
TULSA COUNTY, OKLAHOMA
HONORABLE LINDA MORRISSEY, JUDGE
REVERSED AND REMANDED
James R. Hicks, MORREL SAFFA CRAIGE,
P.C., Tulsa, Oklahoma, for Plaintiff/Appellant,
Teresa Thomas Keller, Robert C. Newark, III,
Oklahoma City, Oklahoma, for Defendant/
Appellee.
ROBERT D. BELL, PRESIDING JUDGE:
¶1 Plaintiff/Appellant, R & R Engineering
Co., Inc. (Employer), appeals from the district
court’s order affirming the opinion of Defen-
The Oklahoma Bar Journal
925
dant/Appellee, The Board of Review (Board)
of the Oklahoma Employment Security Commission (Commission). The Board’s opinion
determined Employer is not an interested party
to the unemployment claim of Defendant,
David Booth (Claimant). On appeal, Employer
asserts the district court erred in law and fact in
affirming the Board’s opinion because Claimant voluntarily resigned from employment
after violating Employer’s drug use policy. We
hold the district court erred in affirming the
Board’s opinion and reverse and remand this
matter to the Commission for further proceedings consistent with this opinion.
¶2 Claimant was employed by Employer
from January 6, 1997, until his resignation
October 30, 2009. When he was employed,
Claimant signed a conditional job offer which
advised he would be subject to drug screening
as determined necessary by Employer. Claimant
also signed a work rules document which
advised his employment could be terminated for
the illegal use of drugs on Employer’s property.
Employer adopted a “Drug & Alcohol Testing
Policy” on November 1, 2007, pursuant to 40
O.S. 2001 §551, et seq., Standards for Workplace
Drug and Alcohol Testing Act. On October 8,
2009, Employer administered a drug test to
Claimant at its facility in Tulsa. Claimant tested
positive for methamphetamine and four other
drugs. Employer informed Claimant that he
could voluntarily resign or be terminated. Claimant elected to resign his employment and signed
a letter of resignation on October 30, 2009.
¶3 Claimant applied for unemployment benefits sometime in December 2009. A notice of
application for unemployment compensation
was sent to Employer. The notice advised
Employer it may file written objections to the
claim and stated: “[i]f this individual voluntarily quit work or was fired for misconduct,
your reply must include full details.” (Emphasis in original.) The notice further stated: “Failure to provide full details may prevent you, the
employer, from being an interested party to the
claim.” (Emphasis in original.)
stating that he resigned and signed it the
same day.
On December 21, 2009, the Commission sent
Employer a form entitled: “Employer Statement for Discharge/Drug Test - rc1542.” This
form requested Employer to remit more information about the separation, within two (2)
days, by December 23, 2009. Employer submitted the additional information on December
29, 2009, along with a cover letter apologizing
for the late submission. Employer explained
most responses are allowed ten (10) days, not
just two (2) days. Employer’s response informed
the Commission that Claimant requested to
resign as a result of the positive drug test
which was attached to the remittance.
¶5 Thereafter, the Commission issued a
Notice of Determination which acknowledged
the receipt of Employer’s letter protest, but
found the letter protest did not contain specific
facts regarding the separation as required by 40
O.S. Supp. 2008 §2-503(E) of the Employment
Security Act of 1980 (the Act), 40 O.S. 2001
§1-108, et seq. Section 2-503(E)(2) provided the
employer must set forth the facts which “[d]
isqualify the claimant from benefits under Sections 2-401 through 2-418 of this title.” Based
on that finding, the Commission determined
Employer would not be considered an interested party to the claim.
¶6 Employer requested an appeal on the
basis that Claimant was disqualified from
receiving benefits under 40 O.S. Supp. 2008
§2-404 because he voluntarily left employment.
Section 2-404(A) provided: “An individual
shall be disqualified for benefits for leaving his
or her last work voluntarily without good
cause connected to the work, if so found by the
Commission.” After a telephone hearing, the
hearing officer of the appeal tribunal issued an
Order of Decision which found:
¶4 After receiving the notice, Employer timely sent a letter protest to the Commission stating:
The claimant was effectively discharged.
He was given the choice of being fired or
resigning. He elected to resign. However,
he was being discharged. The employer’s
protest did not state why he was being discharged or why he was given the choice of
resigning in lieu of discharge. It did not
contain adequate facts showing why the
claimant should be discharged.
On October 30, 2009, David was given the
option to resign from the Company or be
fired for breaking a serious work rule.
David asked for a letter to be drawn up
The appeal tribunal affirmed the Commission’s
determination and held Employer “is not to be
deemed an interested party in connection with
the subject claim.”
926
The Oklahoma Bar Journal
Vol. 85 — No. 12 — 4/19/2014
¶7 Employer filed an appeal to the Board of
Review. Employer contended it complied with
§2-503 because it demonstrated Claimant voluntarily left work and Claimant did not demonstrate “good cause” to voluntarily leave
work under §2-405.1 The Board of Review
issued an opinion which affirmed the appeal
tribunal hearing officer’s determination that
Employer’s protest did not contain specific
information; therefore, Employer cannot be
considered an interested party to the claim.
Employer petitioned for review before the district court. The district court affirmed the
Board’s opinion. Employer now appeals the
district court’s order to this Court.
¶8 “[T]he district court sits as an appeal tribunal and its jurisdiction is limited to the consideration of the transcript and the argument
of the respective attorneys thereon.” Vester v.
Board of Review of Okla. Employment Sec. Comm’n,
1985 OK 21, ¶10, 697 P.2d 533. “[T]he district
court is limited to determinations whether an
error of law was committed in the hearing and
whether or not the findings are supported by
the evidence introduced.” Id.
¶9 On appeal, Employer contends the Board’s
determination that it was not an “interested
party” was erroneous as a matter of law. Employer argues it provided sufficient facts to
apprise the Commission of the basis of Employer’s protest under §2-503. Employer specifically submits its evidence clearly established
Claimant resigned without good cause and his
voluntary resignation disqualified him from
receiving benefits pursuant to §2-404.
¶10 Commission counters if an employee is
given the option of resigning or being terminated, the employee’s action is not a voluntary
resignation, but is instead, a constructive discharge. Commission also contends Employer
was warned that failure to provide full details
concerning the job separation could prevent it
from being an interested party to the claim and
that the scant information provided by Employer was inadequate to determine whether Claimant was entitled to unemployment benefits.
¶11 The primary issue is whether Employer’s
protest complied with the evidentiary requirements set forth in the Commission’s notice and
whether Employer qualified as an “interested
party.” Under Oklahoma Administrative Code
(OAC) 240:10-1-2(A) of the Rules of the Oklahoma Employment Security Commission
(2013), an “Interested Party” is defined as:
Vol. 85 — No. 12 — 4/19/2014
In an unemployment claim appeal — the
Commission, a claimant who files a claim
for unemployment benefits with the Commission, and any employer who properly
files a written objection to the claim pursuant to 40 O.S. §2-503(E).
The rules and regulations enacted by administrative agencies pursuant to the powers delegated to them have the force and effect of law
and are presumed to be reasonable and valid.
Kifer v. Oklahoma Tax Comm’n, 1998 OK CIV
APP 34, ¶10, 956 P.2d 162.
¶12 The question is whether Employer properly filed a written objection pursuant to
§2-503(E). Strict compliance with the statute’s
procedural requirements for filing administrative appeals is mandatory. Oklahoma Found. for
Med. Quality v. Dep’t of Cent. Servs., 2008 OK
CIV APP 30, ¶13, 180 P.3d 1. However, the dispositive issue here does not involve the timely
commencement of a protest or review in an
administrative proceeding; instead, it concerns
the “sufficiency” and “specificity” of Employer’s written objection to Claimant’s unemployment compensation claim and whether such
protest qualified Employer as an “interested
party.”
¶13 After reviewing the Commission’s rules
and the statute, this Court does not find the
governing statute requires verbosity and exactitude as submitted by Commission. Instead,
the purpose of the “specificity” requirement is
to enable the Commission to determine which
exclusion is applicable. Even OAC 240:10-323(e)(2) and (3)2 require the Commission’s representative to accept written and verbal statements from the employer and to take any
action to determine the facts and rights of the
employer and claimant.
¶14 Based on the foregoing analysis, this
Court holds substantial compliance with the
specificity requirement of §2-503(E) is sufficient. Substantial compliance with a statute is
demonstrated if it is made to appear the statute’s purpose is shown to be served. Kasner v.
Stanmire, 155 P.2d 230. The record demonstrates
Employer persistently protested Claimant’s
claim and pursued all avenues for administrative review. While Employer’s protest was not
technically laced with artfully intricate detail,
Employer’s initial protest and its response to
the Employer Statement for Discharge/Drug
Test-rc1542 substantially complied with the statute’s specificity requirement. Employer speci-
The Oklahoma Bar Journal
927
fied Claimant was given a choice of being fired
or resigning due to his positive drug test. There
was no conjecture or speculation as to the reasons why Employer offered resignation. We recognize Employer’s response to the Statement for
Discharge, which was due in only two days, was
submitted eight days late. However, no prejudice would have resulted if the Commission had
accepted Employer’s response as timely and sufficient to qualify Employer as an “interested
party.” Based on these facts, Employer’s protest
substantially complied with the statute’s specificity requirement and therefore Employer was
an interested party in the protest.
¶15 The Board’s conclusion that Employer is
not an interested party is unsupported by the
law and facts. Accordingly, the district court
erred in affirming the Board’s opinion. The
district court’s order is therefore reversed and
this matter is remanded to the Commission for
further proceedings. Because this Court reverses and remands this matter, it is unnecessary to
address whether the district court erred as a
matter of both law and fact in affirming the
Commission’s award of benefits. Employer
will have ample opportunity, on remand, to
present evidence in support of its protest that
Claimant voluntarily resigned from employment without good cause connected to the
work, and thus, is disqualified for unemployment benefits under §2-404.
¶16 REVERSED AND REMANDED.
MITCHELL, J., and GOREE, J., concur.
ROBERT D. BELL, PRESIDING JUDGE:
1. The relevant portion of 40 O.S. Supp. 2006 §2-405 stated:
Good cause for voluntarily leaving work under Section 2-404
of this title may include, among other factors, the following:
1. A job working condition that had changed to such a degree
it was so harmful, detrimental, or adverse to the individual’s
health, safety, or morals, that leaving the work was justified.
2. OAC 240:10-3-23(e) entitled “Determination of eligibility for
benefits” states:
(1) A Commission representative shall determine claimant’s eligibility for benefits.
(2) A Commission representative shall accept written and verbal
statements from the claimant and the employer.
(3) A Commission representative shall take any action necessary
to determine the facts and to determine the rights of both the
employer and claimant.
(4) A Commission representative shall write a determination
which must include the following:
(A) An explanation of the parties’ appeal rights;
(B) A summary of pertinent facts;
(C) The reasons for allowing or denying benefits; and
(D) The conclusion or legal results of the decision.
(5) Any interested party may appeal a determination. The appeal
shall be filed with the Commission. When the appeal is filed, all
interested parties shall be notified.
928
2014 OK CIV APP 27
WILLIE RAY POINTS, Petitioner/Appellant,
vs. THE STATE OF OKLAHOMA,
Respondent/Appellee.
Case No. 111,326. February 14, 2014
APPEAL FROM THE DISTRICT COURT OF
OKLAHOMA COUNTY, OKLAHOMA
HONORABLE BILL GRAVES, JUDGE
AFFIRMED
Brian Jones, ATKINS AND MARKOFF LAW
FIRM, Oklahoma City, Oklahoma, for Petitioner/Appellant,
David A Cincotta, ASSISTANT DISTRICT
ATTORNEY, Oklahoma City, Oklahoma, and
Kenneth Jordan, MUNICIPAL COUNSELOR,
Laura Calvery, ASSISTANT MUNICIPAL
COUNSELOR, Oklahoma City, Oklahoma, for
Respondent/Appellee.
Kenneth L. Buettner, Judge:
¶1 Petitioner/Appellant Willie Ray Points
appeals the trial court’s denial of his petition to
expunge an arrest from his record. We find no
abuse of discretion in the trial court’s denial of
expungement and affirm.
¶2 Points filed his Petition for Expungement
and Sealing of Records June 14, 2012. He
sought expungement of an arrest record under
22 O.S.2011 §18(5), which allowed expungement
where a person was arrested but the charge was
dismissed within a year.1 Points asserted the
damage to his privacy and the adverse consequences of the charge outweighed the public’s
interest in the charge being public.
¶3 The Oklahoma County District Attorney
and the Oklahoma City Municipal Counselor
opposed the petition. The DA conceded the
charge and dismissal in 1993-1994 fit within the
parameters of §18(5). However, the DA asserted Points had since then been arrested and
charged with indecent exposure in a 1998 incident. The DA noted that Points entered a guilty
plea September 22, 1998 and received a five
year suspended sentence, and as a result was
required to register as a sex offender. The DA
alleged Points was also arrested “for a morals/
decency crime” in December 1976. The DA
urged that 22 O.S.2011 §19 requires the court to
weigh the public’s interest in the information
against the petitioner’s privacy interest in
deciding whether to expunge a record. The DA
The Oklahoma Bar Journal
Vol. 85 — No. 12 — 4/19/2014
argued Points’s other charges and guilty plea
showed that the public’s interest in the record
outweighed any harm to Points.
¶4 Following a hearing, the trial court entered
its Order Denying (Points’s) Petition for Expungement and Sealing of Records November
20, 2012. The court found that the risk of harm
to Points did not outweigh the public’s interest
in retaining the records.
¶5 Points appeals. Points contends that
because the facts are undisputed, we must
review the trial court’s decision de novo, citing
Olson v. State, 2012 OK CIV APP 85, 286 P.3d
296 and Buechler v. State, 2008 OK CIV APP 1, ¶
5, 175 P.3d 966. The State counters that those
cases show that where the facts are undisputed
and the question on appeal is the interpretation
of the statute, then a question of law is presented and de novo is the proper review standard, but that the decision whether to expunge
a record is left to the trial court’s discretion, citing Higgins v. State, 2010 OK CIV APP 29, ¶ 12,
231 P.3d 757. Title 22 O.S.2011 §19(C) provides
that where the statutory grounds for expungement are shown, the trial court may grant relief.
We agree with Higgins that where the facts are
undisputed, the trial court has discretion
whether to expunge a record.
¶6 The “purpose of ... Oklahoma’s expungement statutes ‘is to afford special relief in the
form of a full or partial sealing of records relating to a person’s involvement or suspected
involvement in a crime. It is clearly intended to
aid those who are acquitted, exonerated, or
who otherwise deserve a second chance at a
“clean record.”’” Buechler, supra, at ¶ 6, quoting
State of Okla. v. McMahon, 1998 OK CIV APP
103, ¶ 9, 959 P.2d 607, 609. By showing that his
1993 charge was dismissed within a year and
he had not previously sought expungement,
Points made a prima facie showing of harm
from the record being public and entitlement to
a presumption that expungement was warranted, unless the State was able to overcome
that presumption. Buechler, supra, at ¶ 8. Once
a petitioner has shown that he qualifies for
expungement under one of the categories in
§18, the burden shifts to the State to show that
keeping the records public does not harm the
petitioner’s privacy interests and would serve
the ends of justice.2 Hoover v. State, 2001 OK CR
16, ¶ 6, 29 P.3d 591.
¶7 In this case, the State notes Points failed to
present either a transcript or a narrative stateVol. 85 — No. 12 — 4/19/2014
ment of the hearing. Points contends that no
evidence was presented at the hearing and that
the parties simply repeated the arguments
made in their pleadings. The record presented
shows that the trial court could have reasonably found that the public interest outweighed
the danger of adverse consequences to Points
because he later pleaded guilty after another
arrest for indecent exposure and because he
was arrested in 1976 for a “morals/decency”
charge (the record does not indicate whether
he was convicted on that charge). As noted by
the State, Points is now required to be registered as a sex offender as a result of the 1998
conviction and his privacy has therefore been
compromised regardless of the 1993 arrest. The
record does not show an abuse of discretion
and we AFFIRM.
JOPLIN, P.J., and HETHERINGTON, V.C.J.,
concur.
Kenneth L. Buettner, Judge:
1. He alleged he had been arrested on suspicion of indecent exposure October 20, 1993 and the charge was dismissed March 30, 1994.
At the time Points filed his Petition, §18 provided:
Persons authorized to file a motion for expungement, as provided herein, must be within one of the following categories:
***
5. The person was arrested and no charges of any type, including
charges for an offense different than that for which the person
was originally arrested are filed or charges are dismissed within
one (1) year of the arrest, or all charges are dismissed on the
merits;
***
The statute was amended, effective November 1, 2012, and now
provides:
Persons authorized to file a motion for expungement, as provided herein, must be within one of the following categories:
***
5. The person was arrested and no charges of any type, including
charges for an offense different than that for which the person
was originally arrested are filed and the statute of limitations has
expired or the prosecuting agency has declined to file charges.
2. Section 19 provides, in pertinent part (emphasis added):
A. Any person qualified under Section 18 of this title may petition the
district court of the district in which the arrest information pertaining
to the person is located for the sealing of all or any part of the record,
except basic identification information.
***
C. Upon a finding that the harm to privacy of the person in interest or dangers
of unwarranted adverse consequences outweigh the public interest in retaining the records, the court may order such records, or any part thereof except
basic identification information, to be sealed. If the court finds that neither
sealing of the records nor maintaining of the records unsealed by the
agency would serve the ends of justice, the court may enter an appropriate order limiting access to such records.
***
2014 OK CIV APP 28
MARTHA ALICE OVERSTREET KAIL,
Plaintiff/Appellant, vs. KATHLEEN
DUNNAM KNUDESON, Individually and
KATHLEEN KNUDESON, ANNE TERRY,
KIM G. KNUDESON, TRUSTEES OF THE
KATHLEEN KNUDESON TRUST DATED
NOVEMBER 2, 2009, Defendants/Third
The Oklahoma Bar Journal
929
Party Plaintiffs/Appellees, and Maudress
Elaine Overstreet, Mary J. Bell, Thomas G.
Overstreet, Elizabeth Overstreet, Charles A.
Overstreet, John Thomas Overstreet, Russell
Overstreet, Mary Russell, Dora Littlefield,
Minnie Rabon, Lela Fort, Maggie Mae
Overstreet, Dayton Overstreet, Geneva
Overstreet, Sengal Overstreet, Victor
Overstreet and Ruby Belle Overstreet, Third
Party Defendants.
Case No. 110,284. February 21, 2014
APPEAL FROM THE DISTRICT COURT OF
LeFLORE COUNTY, OKLAHOMA
HONORABLE JONATHAN K. SULLIVAN,
JUDGE
AFFIRMED
Chris W. Blankenship, A.J. Garcia, BLANKENSHIP LAW FIRM, P.C., Stigler, Oklahoma, for
Plaintiff/Appellant,
Dean E. Warren, HAMILTON, WARREN &
BOVOS, Poteau, Oklahoma, for Defendant/
Appellee Kathleen Dunnam Knudeson.
ROBERT D. BELL, PRESIDING JUDGE:
¶1 Plaintiff/Appellant, Martha Alice Overstreet Kail, appeals from the trial court’s judgment (1) denying Plaintiff’s petition to set aside
or reform a deed and (2) quieting title to the
subject real property in Plaintiff and the Third
Party Plaintiffs as tenants in common. For the
reasons set forth below, we affirm.
¶2 Plaintiff, who resides in New Hampshire,
is the daughter of Geneva Overstreet. Defendant/Appellee, Kathleen Dunnam Knudeson,
is Overstreet’s niece and Plaintiff’s cousin.
Defendant is a resident of Oregon. On May 4,
2001, Overstreet caused to be drafted a Warranty Deed regarding the Subject Property, an
eighty (80) acre parcel of land Overstreet owned
in LeFlore County. The deed conveyed the real
property to Plaintiff and Defendant “as joint
tenants with right of survivorship and not as
tenants in common . . . .” The deed also contained a clause stating:
IT IS THE INTENTION of all the parties
of this deed that title shall vest in the grantees as joint tenants, so that on the death of
one of them the survivor will take the
whole estate herein conveyed.
The deed was drafted by an employee of the
LeFlore County Clerk’s Office and was execut930
ed by Overstreet in Plaintiff’s presence. The
deed was filed of record in the Clerk’s Office the
same day, May 4, 2001, and delivered to Plaintiff.
Overstreet died later that year. Defendant did
not become aware of the deed until 2005. The
record also discloses Overstreet executed a second deed on May 4, 2001, transferring title to
another parcel of property to herself and Plaintiff as joint tenants.
¶3 On August 13, 2009, Defendant deeded
her interest in the Subject Property to her
daughter, Priscilla Ann Terry. The following
day, Terry and her husband deeded the Subject
Property back to Defendant. On November 2,
2009, Defendant deeded the Subject Property
to herself and her two children, Third Party
Plaintiffs Ann Terry and Kim G. Knudeson, as
Trustees of the Kathleen Knudeson Trust Dated
November 2, 2009. All three deeds were filed of
record in the LeFlore County Clerk’s Office.
¶4 On May 20, 2010, Plaintiff filed the instant
action to set aside or reform the 2001 Warranty
Deed. Plaintiff’s petition claimed, among other
things, that Defendant unduly influenced
Overstreet to obtain an interest in the Subject
Property. Alternatively, Plaintiff asked that the
deed be reformed to reflect the true intent of
Overstreet, which Plaintiff claimed was to create a joint tenancy that Defendant could not
break. Third Party Plaintiffs moved, and were
granted permission, to intervene and bring a
quiet title action against various Third Party
Defendants who might claim an interest in the
Subject Property. Specifically, Third Party Plaintiffs asserted they are one-half owners with
Plaintiff as tenants in common. Defendant also
moved to dismiss Plaintiff’s petition on limitations grounds. Plaintiff responded that title
should be quieted in her alone and that the
five-year statute of limitations was tolled until
Defendant severed the joint tenancy in 2009.
Plaintiff’s filings also intimated Overstreet suffered from diminished capacity when she executed the Subject Property deed.
¶5 Because of Defendant’s declining health,
defense counsel sought permission from the
trial court to take Defendant’s deposition by
telephone and to submit her deposition in lieu
of live testimony at trial. The defense presented
the trial court a letter from Defendant’s doctor
advising against her traveling to Oklahoma for
trial. When Plaintiff objected, the trial court
granted Plaintiff the opportunity to obtain an
independent medical examination of Defendant
to determine if she was healthy enough to travel
The Oklahoma Bar Journal
Vol. 85 — No. 12 — 4/19/2014
to Oklahoma. Plaintiff failed to make such
arrangements. The trial court then entered an
order allowing telephone depositions of Defendant in Oregon and Plaintiff in New Hampshire.
Both depositions were admitted at trial; Defendant’s deposition over Plaintiff’s objection. The
trial also consisted of documentary evidence
and live testimony from Plaintiff and the LeFlore
County Clerk employee who prepared and notarized the Subject Property deed.
¶6 Among other things, Plaintiff testified she
attempted to dissuade Overstreet from deeding the Subject Property to Defendant and
suggested instead that Overstreet give Defendant some money. Plaintiff testified her mother insisted, “I should deed [Defendant] something.” However, Plaintiff maintained Overstreet never wanted the joint tenancy to be
broken and did not want Defendant’s children
to inherit the Subject Property. Plaintiff testified she drove Overstreet to the LeFlore County Clerk’s Office on May 4, 2001, witnessed
Overstreet execute and file the deed, and
obtained a copy of the deed for herself. Her
testimony also confirmed Defendant was in
Oregon at that time.
¶7 By deposition, Defendant testified she
had visited Overstreet in late April 2001, but
exerted no influence on her regarding the Subject Property. Defendant also testified she and
Overstreet maintained a very close relationship
her entire life. Countering Plaintiff’s allegations, Defendant claimed her aunt did not
want Plaintiff’s husband to inherit the Subject
Property. She also asserted Plaintiff relented to
the creation of a joint tenancy estate because
Plaintiff, who is twelve years younger than
Defendant, always assumed she would outlive
Defendant and acquire the whole estate.
¶8 Following trial, the trial court held Plaintiff’s petition was barred by the five-year statute of limitations, 12 O.S. Supp. 2009 §95(12),
which began to run when the deed was filed.
The court specifically rejected Plaintiff’s contention that the limitations period was tolled
until 2009 when Defendant severed the joint
tenancy. The trial court also held Plaintiff failed
to present clear and convincing evidence that
Defendant unduly influenced Overstreet to
execute the deed or that the deed was procured
by fraud. The court quieted title to the Subject
Property one-half in Plaintiff and one-half in
Third Party Plaintiffs as tenants in common.
Finally, the trial court ordered the Subject PropVol. 85 — No. 12 — 4/19/2014
erty partitioned. From said judgment, Plaintiff
appeals.
¶9 This Court’s standard of review of a trial
court’s order granting a motion to dismiss is de
novo. Rogers v. Quiktrip Corp., 2010 OK 3, ¶4,
230 P.3d 853. “Under this standard, we have
plenary, independent and nondeferential
authority to determine whether the trial court
erred in its legal ruling.” Fanning v. Brown, 2004
OK 7, ¶8, 85 P.3d 841. An action to reform or set
aside a deed is an equitable one. Cleary Petroleum Corp. v. Harrison, 1980 OK 188, ¶11, 621
P.2d 528. “The traditional standard of review in
equity suits charges this court with the responsibility to examine the entire record to determine whether the decree is against the clear
weight of the evidence or contrary to law.” Id.
¶10 Although identified as nine separate
propositions of error, the essence of Plaintiff’s
appeal is the trial court erred by (1) permitting
Defendant to be deposed via telephone and
admitting such deposition at trial, and (2) dismissing Plaintiff’s petition as time-barred.
Regarding the deposition, Plaintiff’s brief-inchief asserts the Oklahoma Discovery Code
does not authorize telephonic depositions. As
Defendant correctly points out in her answer
brief, however, 12 O.S. Supp. 2005 §3230(C)(6)
specifically authorizes depositions to “be taken
by telephone or other remote electronic means.”
The trial court did not err by permitting Defendant (or Plaintiff) to be deposed by telephone.
¶11 Plaintiff’s reply brief then urges the
defense failed to show, and the trial court failed
to make a finding, that Defendant was unavailable to testify before admitting her deposition
transcript at trial. Title 12 O.S. Supp. 2002
§2804(B)(1) permits depositions to be admitted
in lieu of testimony at trial “if the declarant is
unavailable as a witness.” “Unavailability as a
witness” is defined at §2804(A)(4) as the inability of a witness “to be present or to testify at the
hearing because of death or then existing
physical or mental illness or infirmity; . . .” As
previously stated, the defense presented the
trial court with a medical opinion that, due to
health reasons, Defendant should not travel
from Oregon to Oklahoma for trial. Plaintiff
was given the option of obtaining an independent medical opinion regarding Defendant’s
state of health and chose not to do so. Plaintiff
also concedes in her appellate filings that
Defendant did, in fact, “present[] documentation allegedly supporting . . . that [she] is
unable to travel . . . .”
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931
¶12 The judgment under review notes the
subject of Defendant’s deposition originally
arose in November 2010 and it was later discussed at a pretrial conference. Plaintiff did not
designate for inclusion in the appellate record
any documents or records associated with
either of those hearings. “Absent a record
showing otherwise, this court presumes that
the trial court did not err.” Hamid v. Sew Original, 1982 OK 46, ¶6, 645 P.2d 496. Further, the
admissibility of previous testimony at trial “is
at the discretion of the trial judge.” Newton v.
State, 1965 OK CR 102, ¶6, 403 P.2d 913. We
find no abuse of discretion in the trial court’s
decision to admit Defendant’s deposition testimony at trial.
¶13 As for Plaintiff’s complaint that the trial
court erred in failing to make specific findings
of fact regarding admission of the deposition
testimony, the record does not indicate Plaintiff
requested the trial court make such findings.
Thus, the trial court was not required to detail
its findings in the judgment. 12 O.S. 2011 §611.
¶14 The five-year statute of limitations at 12
O.S. Supp. 2009 §95(12) “applies to causes of
action to reform a deed on the ground of
alleged mistake.” Horn v. Horn, 2007 OK CIV
APP 114, ¶5, 172 P.2d 228. “If the right to recover is primarily based on fraud the two-year
statute is applicable.” Id., quoting Maloy v.
Smith, 1959 OK 69, ¶24, 341 P.2d 912. “The fiveyear statute of limitations set forth in subsection 12 applies ‘if the right to recover is based
upon inequitable conduct which falls short of
fraud.’” Horn at ¶5, quoting Maloy at ¶24.
¶15 With respect to alleged fraud or inequitable conduct, the only action Defendant took
in this case was to transfer her interest in the
Subject Property to a trust, thus severing the
joint tenancy and creating a tenancy in common. Such action is perfectly legal. “In the case
of two joint tenants, the concept of joint tenancy with right of survivorship permits each owner
to alienate and hold his share at the same time
he ‘and the other or others hold the entire
property as by a single ownership.’” In re Estate
of Metz, 2011 OK 26, ¶7, 256 P.3d 45, quoting
Shackelton v. Sherrard, 1963 OK 193, 385 P.2d 898
(emphasis added). Plaintiff presented no evidence of fraud or inequitable conduct and cites
no law prohibiting Defendant’s actions.
¶16 The only alleged “mistake” Plaintiff
refers to is her (and allegedly her mother’s)
mistaken impression that a joint tenancy could
932
never be broken. “[I]n most instances, ignorance of the law is no excuse, and every person
is presumed to know the law.” Estes v. ConocoPhillips Co., 2008 OK 21, ¶22, 184 P.3d 518. Further, Plaintiff’s reliance upon the “intent”
clause in the deed is of no avail. Such language
is merely a restatement of the general character
of a joint tenancy: absent severance, the death
of one tenant results in the surviving tenant
acquiring the whole estate. Metz, 2011 OK 26 at
¶8. The clause did not create an unassailable
joint tenancy incapable of being severed.
¶17 The deed at issue was executed and filed
of record on May 4, 2001. It is undisputed
Plaintiff had actual knowledge of the deed, as
she accompanied her mother to the Clerk’s
Office, witnessed her execute and file the deed,
and obtained a copy thereof for herself. Plaintiff has advanced no tenable theory for tolling
the five-year statute of limitations, which
expired on May 4, 2006. Plaintiff’s petition,
filed on May 20, 2010, was untimely.
¶18 AFFIRMED.
MITCHELL, J., and GOREE, J., concur.
2014 OK CIV APP 29
In the Matter of the Estate of Carlton E.
Horner, Sr., Deceased: CARLTON E.
HORNER, JR., Appellant, vs. CARLA
STANKICH, PERSONAL
REPRESENTATIVE OF THE ESTATE OF
CARLTON E. HORNER, SR., DECEASED,
Appellee.
Case No. 110,794. October 25, 2013
APPEAL FROM THE DISTRICT COURT OF
MUSKOGEE COUNTY, OKLAHOMA
HONORABLE DARRELL SHEPHERD,
JUDGE
AFFIRMED
Allen W. Counts, Muskogee, Oklahoma, for
Appellant,
Ron Wright, Wright, Stout, Fite & Wilburn,
Muskogee, Oklahoma, for Appellee.
Larry Joplin, Chief Judge:
¶1 Appellant Carlton E. Horner, Jr. seeks
review of the trial court’s orders denying him a
continuance and construing the Last Will and
Testament of his father, Carlton E. Horner, Sr.,
Deceased (Decedent). In this appeal, Appellant
asserts the trial court abused its discretion in
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denying him a continuance to obtain substitute
counsel, and erred as a matter of both fact and
law in refusing to enforce and affect Decedent’s
specific devise of real property and bequests of
money to him.
¶2 At the time Decedent executed his Last
Will and Testament, Decedent owned a residence in his own name at 1205 Edgewater,
Broken Arrow, Oklahoma. Also at the time,
Decedent owned all the shares in a company
known as Property Development, Inc. (“PDI”),
and PDI owned two tracts of commercial real
property located at 2003 W. Shawnee and 2316
W. Shawnee in Muskogee, Oklahoma.
¶3 Decedent executed his Last Will and Testament on November 10, 2004. Relevant to
these properties, Decedent’s Will first directed
the sale of all his real property, and a division
of the proceeds among his heirs as part of his
residuary estate. Decedent’s Will further provided:
. . . From the sale of the property located at
2003 W. Shawnee, Muskogee Oklahoma
after the encumbrance is paid off it is my
desire that the first $100,000 from said sale
be paid to Carlton Horner, Jr.
. . . From the sale of the property located at
2316 W. Shawnee, Muskogee Oklahoma
after the encumbrance is paid off it is my
desire that the first $100,000 from said sale
be paid to Carlton Horner, Jr.
In a handwritten letter to his daughter, Appellee Carla Stankich, dated December 5, 2004,
Decedent then wrote:
. . . When the buildings [at 2003 W. Shawnee and 2316 W. Shawnee] are sold, [Appellant] is to get $100,000 from each sale. He
gets $900.00 a month for leasing and collecting the lease money. After the buildings
are sold, pay off the house and my new
[car]. After the house is paid off, [Appellant] can live in it. If he ever decides he
doesn’t want to live in it, sell it.
On June 21, 2006, PDI conveyed the property
located at 2003 W. Shawnee to Appellant without consideration.
¶4 By document executed July 31, 2009,
Decedent created a living trust. Decedent conveyed to the trust all of his stock in PDI, which
owned the remaining Muskogee commercial
property. The trust document directed distribution of the trust assets, including the PDI
Vol. 85 — No. 12 — 4/19/2014
shares, to named beneficiaries upon Decedent’s
death.
¶5 Prior to Decedent’s death, PDI sold the
property at 2316 W. Shawnee. From the proceeds, PDI paid Appellant a “referral fee” of
$57,500.00 and PDI retained the remaining proceeds of the sale.
¶6 Also prior to Decedent’s death, PDI purchased a tract of unimproved real property in
Muskogee County, Oklahoma, from Bill and
Marilyn Palmieri. At the same time, Decedent
purchased from the Palmieris a second tract
and residence in Muskogee, and held title to
the second tract in his name alone. Appellant
lived in the Muskogee residence acquired from
the Palmieris after its purchase.
¶7 Decedent died in September 2010, and
probate proceedings commenced. By order
dated November 3, 2010, the trial court admitted Decedent’s November 2004 Will to probate.
The trial court also admitted Decedent’s
December 2004 handwritten letter to Appellee
as a holographic Codicil to the Will. The trial
court appointed Appellee personal representative of the estate in accord with the Will.
¶8 By order filed January 10, 2011, the trial
court allowed Appellant’s then-attorney to
withdraw. By order filed March 16, 2011, the
trial court allowed Appellant’s substitute counsel to withdraw.
¶9 By and through his third attorney, Appellant sought an interim accounting and partial
distribution. Given PDI’s ownership of the
properties directed sold by the Will, Decedent’s
conveyance of his PDI shares to his living trust,
PDI’s conveyance to Appellant of one of the
Muskogee properties unsupported by consideration, and PDI’s sale of the other, Appellee
sought a construction of the Will and an adjudication of Appellant’s interest in Decedent’s
estate as limited to the only property owned by
Decedent individually at the time of his death,
i.e., Decedent’s Broken Arrow residence subject to the mortgage.
¶10 The trial court set the matters for hearing on March 16, 2012. On February 16, 2012,
however, Appellant’s third attorney sought to
withdraw, which the trial court allowed, and
Appellant’s third attorney turned over all files
and materials to Appellant.
¶11 Appellee, a resident of Michigan, traveled to Oklahoma, and appeared with her at-
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torney on the date of hearing. Appellant
appeared unrepresented and requested a continuance to obtain yet another attorney. Upon
Appellee’s objection and plea of hardship if a
continuance was granted, the trial court denied
Appellant a continuance, and proceeded to
accept the testimony and evidence of Appellee,
the testimony of Appellant, and the testimony
of an employee of the abstract company where
the Palmieri purchase was consummated to the
effect that Decedent had purchased the Palmieri residence for Appellant. The evidence also
showed that Appellant made payments to the
Palmieris toward a $5,000.00 note as part of the
purchase of the Palmieris’ house.
3. The Personal Representative, subject to
the election of [Appellant] regarding the
Broken Arrow property, shall be allowed to
sell the Muskogee Residence and the Broken Arrow residence free of any claim of
[Appellant] in the Muskogee Residence.
¶12 Upon consideration of the testimony and
evidence, the trial court held:
...
Property which was not owned by the
[D]ecedent at the time of his death is not
legally devisable. Following that principle,
proceeds from the sale of property not
owned by the [D]ecedent’s estate renders
bequests derived from the use of such proceeds unenforceable. Sections 6.01 and 6.02
of the Will direct the sale of specific property which [Decedent] did not own. Directives for the use of proceeds under 6.01 and
6.02 and the Codicil cannot be given effect.
[Appellant] was given the right to live in
the only house owned by [D]ecedent when
the Will was executed, that being in Broken
Arrow. The mortgage on the Broken Arrow
house was to be paid off from the proceeds
of the sale of the property [Decedent] did
not own, and cannot be given effect. Reading Sections 4.01, 6.01 and 6.02 together it
cannot be construed that [Decedent] intended [Appellant] to have the right to live in
the Broken Arrow residence free of debt
except as was able to be accomplished from
the sale of the properties in 6.01 and 6.02.
5. [Appellant] should be given credit
against the fair rental value of the Muskogee Residence for the payments made on
the $5,000 note to Palmieris.
7. Any claim of [Appellant] against the
estate is barred and declared to be held for
naught.
(Citation omitted.) Appellant appeals.
¶13 Appellant first complains the trial court
abused its discretion when it denied his oral
motion to continue, interposed on the morning
of hearing, so he could obtain a fourth attorney
upon the withdrawal of his third some two
weeks prior to the scheduled hearing. Appellee
responds, and asserts that, given the hardship of
additional travel from Michigan which a continuance would have caused her, and because
Appellant did not demonstrate he diligently
sought substitute counsel after withdrawal of
his third attorney, the trial court did not abuse its
discretion in denying a continuance.
1. [Appellant] shall have the right to elect
to reside in the Broken Arrow residence
subject to the debt thereon, such election to
be made in writing within 20 days of the
date of this Order and filed with the
Court.
¶14 “The general rule in Oklahoma is that
the granting or refusing of a continuance is
within the sound discretion of the trial court,
and the refusal to grant a continuance is not
reversible error unless an abuse of discretion is
shown.” In the Matter of the Estate of Katschor,
1975 OK 159, ¶7, 543 P.2d 560, 562. (Citation
omitted.) Where the attorney for a party
becomes disabled, withdraws or is terminated
shortly before trial, and the party does not act
with reasonable dispatch to obtain substitute
counsel, the trial court does not abuse its discretion in denying a continuance on account of
the absence of counsel. Security Nat. Bank of
Sapulpa v. Hufford, 1987 OK CIV APP 92, ¶12,
754 P.2d 561, 565; Sandlin v. Pharoah, 1938 OK
143, ¶¶0(2), 13, 15, 78 P.2d 284, 286.
2. [Appellant] shall vacate the Muskogee
Residence not later than 60 days after the
date of this Order.
¶15 In the present case, the trial court permitted Appellant’s first and second attorneys to
withdraw based on Appellant’s “failure to
Taking these rules of construction into consideration the Court orders that:
934
4. [Appellant] is obligated to the estate for
the fair rental for the Muskogee residence
which is a total rental obligation, as of May
1, 2012, of $11,400.00.
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Vol. 85 — No. 12 — 4/19/2014
abide by the attorney-client agreement.” Some
two weeks prior to the scheduled hearing, the
trial court permitted Appellant’s third attorney
to withdraw based on Appellant’s “refusal to
abide by [the] Attorney-Client contract agreement and by mutual consent of” Appellant and
the third attorney, and the third attorney
promptly turned over all of the files and materials to Appellant upon withdrawal. Appellant
made no written request for a continuance, and
apparently made little or no effort to obtain
substitute counsel over the next two weeks
prior to the scheduled hearing. Appellant
appeared unrepresented at the hearing, and
only then orally requested a continuance to
obtain yet another attorney, his fourth in the
course of these proceedings.
¶16 Upon Appellee’s objection and representation that a continuance would impose on her
additional unreasonable travel and hardship,
the trial court denied Appellant’s oral request
for continuance, and proceeded to conduct the
hearing on the merits, where Appellant was
afforded a full and fair opportunity to present
his arguments. Under these circumstances, we
hold the trial court did not abuse its discretion
in denying Appellant’s eleventh-hour oral
motion for continuance interposed at the hearing on the merits.
¶17 In his second proposition, Appellant
asserts the Decedent clearly expressed his
intent that Appellant receive a residence, and
particularly, the Muskogee residence purchased
from the Palmieris. Appellant argues that Oklahoma statute, 84 O.S. §146, directs that property “acquired by the testator after the making
of his will, passes thereby,” and that, considering the testimony of the abstract company
employee that Decedent expressed his intent to
her that he purchased the Muskogee residence
from the Palmieris for Appellant, the trial court
erred in construing Decedent’s Will and Codicil otherwise.
¶18 As a substantive matter, “[a] will is to be
construed according to the intention of the testator[,] [and] [w]here his intention cannot have
effect to its full extent, it must have effect as far
as possible.” 84 O.S. §151. “All the parts of a will
are to be construed in relation to each other, and
so as to form one consistent whole, if possible…”
84 O.S. §155. “The words of a will are to be taken
in their ordinary and grammatical sense unless a
clear intention to use them in another sense can
be collected, and that other can be ascertained.”
84 O.S. §158. “The words of a will are to receive
Vol. 85 — No. 12 — 4/19/2014
an interpretation which will give to every expression some effect rather than one which shall
render any of the expressions inoperative.” 84
O.S. §159.
¶19 But, “[a] conditional disposition is one
which depends upon the occurrence of some
uncertain event, by which it is either to take
effect or be defeated.” 84 O.S. §179. And, “[a]
condition precedent in a will is one which is
required to be fulfilled before a particular disposition takes effect.” 84 O.S. §180.
¶20 “Probate proceedings are of equitable
cognizance.” In the Matter of the Estate of Holcomb, 2002 OK 90, ¶8, 63 P.3d 9, 13. (Emphasis
original.) (Footnotes omitted.) “While an appellate court will examine and weigh the record
proof, it must abide by the law’s presumption
that the nisi prius decision is legally correct and
cannot be disturbed unless found to be clearly
contrary to the weight of the evidence or to
some governing principle of law.” Id. “The
emphasis of the judicial process from beginning to end is to discern and effectuate the
decedent’s dispositive intent.” Id.
¶21 In this respect, a testator’s bequest of real
property, which the testator disposed of during
his lifetime, or which the testator had no legal
right to dispose of at the time of death, cannot
be enforced. See, Arment v. Shriners Crippled
Childrens Hospitals, 1956 OK 53, 298 P.2d 1048.
In Arment, the testator made “seven specific
devises” of eight tracts of real property, but it
was “discovered that legal title to six of the
eight tracts of real property which decedent
had undertaken to devise was vested in decedent and his wife as joint tenants, . . . [that]
upon his death legal title thereto vested in the
surviving widow[,] [and that] [o]ne tract had
been sold by decedent prior to death,” so that,
“[o]f the property sought to be devised only
one tract mentioned in the will was legally
devisable.” 1956 OK 53, ¶3, 298 P.2d at 1050.
Under these circumstances, the Oklahoma
Supreme Court held:
Under the factual situation presented in
the case now before us not one of the eight
bequests of real estate can be enforced. One
fails because the property was disposed of
prior to the death of the testator; six of the
bequests fail because the property was
owned jointly by the testator and his wife,
and upon the death of the testator the
entire title vested in the surviving spouse.
Only the one remaining tract was owned
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exclusively by the testator, and under his
will he devised a life estate in that tract to
his wife, and at her death it was to go to the
Shriners Hospitals for Crippled Children.
The wife elected to take under the laws of
succession and declined the bequest under
the will, so that she is entitled to receive in
fee one-half of the tract, or rather, one-half
of the money derived from the condemnation of the tract. There then remains for
disposition only one-half of the condemnation money, . . ..
Arment, 1956 OK 53, ¶19, 298 P.2d at 1053.
¶22 In the present case, Decedent directed in
his Will and Codicil that the Muskogee commercial properties be sold, and, after payment
of any encumbrances, the first $100,000.00 from
the sale proceeds of each be paid to Appellant.
However, at the time of his death, Decedent
owned no interest in either of those properties.
That is to say, those properties were owned by
PDI, Decedent’s company in which he held all
shares, but Decedent had conveyed all of his
shares in PDI to his living trust, and directed
the distribution of those shares to his heirs
upon his death. Moreover, during Decedent’s
lifetime, PDI conveyed all of its interest in one
of the properties to Appellant and sold the
other.
¶23 Decedent consequently owned no interest in either property at the time of his death.
Decedent’s direction for the sale of those properties, and the application and distribution of
the proceeds, could not be enforced.
¶24 Furthermore, by his handwritten Codicil, Decedent directed the remaining proceeds
from the sale of the two Muskogee commercial
properties be applied to the outstanding indebtedness on “the house” and his car, and
expressed his wish that Appellant should be
allowed to “live in it,” that is, “the house.” But,
the only “house” Decedent owned at the time
he executed his Last Will and Codicil was his
residence in Broken Arrow, Oklahoma. The
Codicil can be construed as granting Appellant
only the right to live in the Decedent’s Broken
Arrow residence.
¶25 And, we have recognized the trial court
correctly held the provisions of Decedent’s Will
and Codicil calling for the sale of the two
Muskogee properties and application of the
proceeds to discharge any debt on “the house”
failed because Decedent had no legal right to
dispose of the Muskogee properties at the time
936
of his death. Consequently, any right of Appellant to live in Decedent’s Broken Arrow residence must be held subject to any indebtedness
thereon.
¶26 While it is clear Decedent wanted his
estate liquidated, and the proceeds of the liquidation applied for the benefit of Appellant, his
son, his disposition of his assets during his
lifetime — by the conveyance to his living trust
of all the shares of PDI, the corporate owner of
the Muskogee commercial properties, PDI’s
conveyance of one of the properties to Appellant and PDI’s sale of the other — rendered the
provisions of his Will and Codicil calling for
the sale of those properties unenforceable. The
trial court so construed Decedent’s Will and
Codicil, and we cannot say the trial court erred
as a matter of either law or fact in so holding.
¶27 In his third proposition, Appellant asserts
the trial court erred in its treatment of the
Muskogee residence purchased from the Palmieris. Particularly, Appellant argues that Decedent’s statement to the abstract company
employee that he had purchased the Palmieris’
residence for Appellant’s benefit established
Decedent’s intent to hold the property in joint
tenancy with him, so that property passed to
him by operation of law at the time of Decedent’s death.
¶28 We disagree. Decedent’s Will and Codicil, specifically referring to “the house,” cannot
be construed to reach property either not
owned by Decedent at the time, or not fairly
encompassed by the language employed, and,
beyond the hearsay testimony of the abstract
company employee, there is no evidence or
testimony tending to show that “the house” to
which Decedent referred in his Codicil was
intended to encompass the residence purchased from the Palmieris some six years later.
Moreover, the testimony of the abstract company employee was reasonably clear and
showed that Decedent expressly directed that
title to the Palmieri residence be placed in his
name alone. Although Appellant may have
contributed his own money toward repayment
of the $5,000.00 note to the Palmieris, we cannot say that circumstance, even coupled with
his occupancy of the Palmieri residence after
its purchase, clearly evinces Decedent’s intent
to substitute the Muskogee residence for “the
house” in Broken Arrow to which he referred
in his Codicil. Under these circumstances, we
hold the trial court did not err as a matter of
either law or fact in refusing to recognize any
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right of Appellant as surviving joint tenant in
the Muskogee residence.
¶29 The order of the trial court is AFFIRMED.
BUETTNER, P.J., and BELL, J., concur.
2014 OK CIV APP 30
TERESA J. BARNARD, Plaintiff/Appellant,
vs. EDDIE EUGENE SUTTON, Defendant/
Appellee, and Oklahoma State University,
Justin R. Hart, Thomas W. Allen, James
Battles, Jr., Joe Juller, Robet A. Distefano,
and James S. Distefano, Defendants.
Case No. 110,841. November 21, 2013
APPEAL FROM THE DISTRICT COURT OF
PAYNE COUNTY, OKLAHOMA
HONORABLE PHILLIP C. CORLEY, JUDGE
AFFIRMED
Rex D. Brooks, REX D. BROOKS, ATTORNEY
AT LAW, Oklahoma City, Oklahoma, for Plaintiff/Appellant,
Mort G. Welch, Sherry L. Smith, WELCH &
SMITH, P.C., Oklahoma City, Oklahoma, for
Defendant/Appellee.
ROBERT D. BELL, JUDGE:
¶1 Plaintiff/Appellant, Teresa J. Barnard,
appeals from the trial court’s grant of summary
judgment to Defendant/Appellee, Eddie Eugene Sutton, in this tort action arising from an
automobile accident. For the reasons set forth
below, we affirm.
¶2 In February 2006, Sutton was employed as
the head men’s basketball coach at Oklahoma
State University (OSU). On February 10, 2006,
Sutton negligently drove a motor vehicle into
Plaintiff’s vehicle, causing her injuries. Sutton’s vehicle was furnished to him by OSU as
part of his employment compensation package. At the time of the accident, Sutton was in
route from the performance of work in his
office on the OSU campus to the Stillwater
Municipal Airport to catch a flight with his
team for an out-of-town game. Sutton was
admittedly intoxicated at the time of the accident and subsequent testing revealed a .22
blood alcohol level. Four OSU employees, Defendants Thomas A. Allen, James Battles, Jr.,
Justin R. Hart and Joe Muller (Employee Defendants), came to Sutton’s aid after he fell in the
parking lot on OSU’s campus and witnessed
Vol. 85 — No. 12 — 4/19/2014
Sutton before he left in his car for the airport.
Muller offered to drive Sutton to the airport and
subsequently followed him in a separate car
along the way, twice attempting to stop Sutton.
¶3 Plaintiff filed the instant suit on August 8,
2007. She sued Sutton for negligence, contending he was not acting within the scope of his
employment because of his intoxication. She
sued OSU pursuant to the Governmental Tort
Claims Act, 51 O.S. 2001 §151 et seq. (GTCA),
claiming OSU was liable for Sutton’s acts performed within the scope of his employment.
She also claimed OSU was negligent in its hiring, training and supervision of the Employee
Defendants. Plaintiff’s claims against the Employee Defendants asserted they negligently
assisted or enabled Sutton to drive the vehicle
while he was under the influence. She alleged
those defendants were not acting within the
scope of their employment with OSU when
they assisted Sutton.1
¶4 On their motion, the trial court granted
summary judgment to the Employee Defendants. Division II of this Court subsequently
affirmed that judgment in Barnard v. Allen, Case
No. 106,629 (Dec. 30, 2009) (unpublished), cert.
denied April 7, 2010. The Court held, “even if [the
Employee Defendants] were acting outside the
scope of their employment and knew or should
have known Sutton was intoxicated, [they] owed
no duty to protect Barnard from Sutton’s negligent driving.” Slip Opinion at ¶17.
¶5 On September 20, 2010, Plaintiff moved to
transfer venue of her case to Oklahoma County. That motion was pending when OSU made
— and Plaintiff accepted — an offer of judgment for $175,000.00. The trial court entered
judgment for Plaintiff against OSU in that
amount on November 23, 2010. Plaintiff thereafter filed a release and satisfaction as to OSU.
Plaintiff’s motion to transfer venue was denied
by order dated December 23, 2011, on the
ground Plaintiff failed to show she could not
receive a fair trial in Payne County.
¶6 Plaintiff then filed a motion for partial
summary judgment against Sutton, arguing
Sutton’s intoxication prevented him from acting within the scope of his duties, within the
meaning of the GTCA, when he struck Plaintiff’s vehicle. Sutton countered by filing a
motion to dismiss or, in the alternative, motion
for summary judgment. Therein, Sutton argued
the judgment entered for Plaintiff against OSU
bars her claims against Sutton. Specifically,
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Sutton claimed the undisputed material facts
establish he was driving a vehicle furnished by
OSU for his use, acting within the scope of his
employment, when his vehicle struck Plaintiff’s vehicle and caused her injuries. Thus,
Sutton asserts, he is immune from suit under
the GTCA.
¶7 The trial court concluded that after the
Employee Defendants were granted judgment,
the only remaining defendants were OSU and
Sutton. Plaintiff’s claim against OSU was premised on the school’s vicarious liability for Sutton’s negligence committed within the scope of
his employment. Her claim against Sutton was
based on his negligence committed outside the
scope of his employment. The trial court held
that when Plaintiff accepted the offer of judgment from OSU, she also accepted that Sutton
was acting within the scope of his employment
when he committed his negligent acts against
her. Based on that finding, the court held as a
matter of law Sutton was acting within the scope
of his employment at the time of the accident,
notwithstanding his intoxication. The trial court
overruled Plaintiff’s motion and granted Sutton’s motion. From said judgment, Plaintiff
appeals. This matter stands submitted for accelerated appellate review without appellate briefs
on the trial court record pursuant to Rule 13(h),
Rules for District Courts, 12 O.S. 2011, Ch. 2, App.,
and Rule 1.36, Oklahoma Supreme Court Rules, 12
O.S. 2011, Ch. 15, App. 1.
¶8 This Court’s standard of review of a trial
court’s grant of summary judgment is de novo.
Hoyt v. Paul R. Miller, M.D., Inc., 1996 OK 80,
¶2, 921 P.2d 350, 351-2. Summary judgment is
proper when the evidentiary materials “establish that there is no genuine issue as to any
material fact, and that the moving party is
entitled to judgment as a matter of law.” Shelley
v. Kiwash Elec. Co-op., 1996 OK 44, ¶15, 914 P.2d
669, 674.
¶9 As previously set forth, Plaintiff sued
OSU pursuant to the GTCA. “The Oklahoma
Governmental Tort Claims Act is the exclusive
remedy by which an injured plaintiff may
recovery against a governmental entity for its
negligence.” Speight v. Presley, 2008 OK 99, ¶11,
203 P.3d 173, 176. “Under the GTCA, [a governmental entity] cannot be held liable for acts or
omissions of its employees acting outside the
scope of their employment.” Morales v. City of
Okla. City ex rel. Okla. City Police Dept., 2010 OK
9, ¶4, 230 P.3d 869, 873 n.5. Stated otherwise,
“If an employee is acting outside the scope of
938
employment, the GTCA does not apply.”
Speight at ¶11, 203 P.3d at 176.
¶10 OSU is a governmental entity covered by
the GTCA. 51 O.S. Supp. 2010 §152(13) (definition of “State” includes “university”). Sutton
was clearly an employee of OSU at the time of
the accident. 51 O.S. Supp. 2010 §152(7) (“’Employee’ means any person who is authorized to
act in behalf of a political subdivision or the state
. . .”). An essential prerequisite for Plaintiff to
recover any damages from OSU for Sutton’s
conduct was a determination that Sutton was
acting within the scope of his employment when
he drove his vehicle into Plaintiff’s. If Sutton’s
conduct fell outside the scope of his employment, the GTCA would not have applied and
OSU would have been immune from Plaintiff’s
suit.
¶11 By accepting OSU’s offer of judgment in
this case brought pursuant to the GTCA, Plaintiff
implicitly acquiesced in a legal truism: OSU’s
liability arose only because Sutton’s tortious
acts were committed within the scope of his
employment. Whether Sutton’s intoxication
constituted conduct falling outside the scope of
his employment, see, e.g., Holman v. Wheeler,
1983 OK 72, 677 P.2d 645, is not at issue in this
opinion. By accepting OSU’s offer of judgment,
Plaintiff accepted that Sutton was acting within
the scope of his employment when he caused
her injuries.
¶12 The GTCA further provides:
A judgment or settlement in an action or
claim under this act shall constitute a complete bar to any action by the claimant
against an employee whose conduct gave
rise to the claim resulting in that judgment
or settlement.
51 O.S. 2001 §160. Plaintiff’s settlement with
OSU constitutes a complete bar to her claims
against Sutton, “whose conduct gave rise to the
claim resulting in” the settlement and judgment against OSU.
¶13 On the basis of the foregoing and upon
de novo review, we conclude there exists no
issue of disputed material facts and Sutton is
entitled to judgment as a matter of law. Because
Sutton is entitled to judgment as a matter of
law, we need not address Plaintiff’s allegation
that the trial court erred in denying her motion
to transfer venue. The judgment of the trial
court is affirmed.
The Oklahoma Bar Journal
Vol. 85 — No. 12 — 4/19/2014
¶14 AFFIRMED.
BUETTNER, P.J., and JOPLIN, C.J., concur.
1. Plaintiffs also named as a defendant another OSU employee,
Robert A. Distefano (later amended to James S. Distefano). She later
dismissed Distefano from the case.
2014 OK CIV APP 31
RANDY PAUL, Plaintiff/Appellant, vs.
RENEE WILLIAMSON, Defendant, TONY
LOPEZ, Intervenor/Appellee.
Case No. 111,787. February 21, 2014
APPEAL FROM THE DISTRICT COURT OF
COMANCHE COUNTY, OKLAHOMA
HONORABLE GERALD F. NEUWIRTH,
JUDGE
REVERSED
Gregory P. Beben, LEGAL AID SERVICES OF
OKLAHOMA, INC., Oklahoma City, Oklahoma, and Richard J. Vreeland, LEGAL AID SERVICES OF OKLAHOMA, INC., Norman, Oklahoma, for Plaintiff/Appellant.
Kenneth L. Buettner, Judge:
¶1 Petitioner/Appellant Randy Paul appeals
the trial court’s Order Vacating Order of Custody. Paul acknowledged paternity of A.P. February 8, 2005. Paul was awarded custody of
A.P. October 7, 2008. On April 25, 2012, Intervenor/Appellee Tony Lopez filed a petition to
vacate the 2008 order of custody pursuant to 12
O.S. § 1031(4). Lopez’s attempt to challenge
Paul’s acknowledgment of paternity and vacate
the custody order was untimely. Therefore, the
trial court abused its discretion by vacating the
2008 custody order. We reverse.
¶2 Defendant Renee Williamson discovered
she was pregnant while she was dating and
living with Lopez in 2004. Williamson was still
pregnant when she and Lopez ended their relationship. Williamson began dating Paul. Williamson gave birth to A.P. February 7, 2005.
Williamson and Paul were not married when
A.P. was born, and Paul knew he was not the
child’s biological father. However, Paul signed
a DHS affidavit acknowledging paternity February 8, 2005, and Paul was named A.P.’s father
on the birth certificate. Thereafter, Williamson,
Paul, and A.P. lived together in Lawton, Oklahoma, until late-2007.
¶3 Paul filed a Petition to Establish Paternity,
Custody, Visitation and Support January 22,
2008. Williamson was served, but did not apVol. 85 — No. 12 — 4/19/2014
pear. On October 7, 2008, the trial court entered
a default judgment against Williamson and
awarded Paul custody of A.P. The trial court
also awarded Williamson visitation and ordered
her to pay child support.
¶4 Williamson and A.P.’s whereabouts were
unknown until Lopez contacted Paul in the
summer of 2009 and told him where Williamson and A.P. were living in Oklahoma City.
Lopez contacted Paul after he discovered Williamson and A.P.’s deplorable living conditions. Lopez testified that he contacted Paul
because he knew Paul was A.P.’s legal father
on the birth certificate. Paul sought a writ of
habeas corpus in Oklahoma County July 29,
2009. Williamson was not served, and Paul
filed a second petition for a writ of habeas corpus February 22, 2011. A.P. was picked up by
the Oklahoma County Sheriff’s Department
and returned to Paul February 23, 2011. A.P.
has been in Paul’s physical custody since that
time. Lopez has had periodic contact with A.P.
throughout her life.
¶5 On April 25, 2012, Lopez filed a motion to
intervene and a petition to vacate the 2008
order of custody. Lopez alleged he was the
natural father of A.P. and that Paul established
paternity and obtained custody by fraud. At
the time Lopez intervened, A.P. was seven (7)
years old. The trial court granted Lopez’s
motion to intervene August 21, 2012 and held a
hearing on the motion to vacate October 18,
2012. After the hearing, the parties briefed the
issues. The trial court announced from the
bench April 3, 2013 that the Uniform Parentage
Act (UPA) did not apply, that Lopez’s motion
to vacate was timely filed, and that Lopez’s
due process rights were violated when he was
not given notice of Paul’s 2008 petition for custody. The trial court granted Lopez’s motion
and vacated the October 7, 2008 custody order.
The trial court entered an Order Vacating
Order of Custody April 19, 2013. Paul appeals.
¶6 The trial court’s decision on a motion to
vacate a judgment is reviewed for an abuse of
discretion. Ferguson Enters., Inc. v. H. Webb
Enters., Inc., 2000 OK 78, ¶ 5, 13 P.3d 480. Paul
argues the trial court should have dismissed
Lopez’s motion to vacate the order of custody,
because Lopez filed the motion more than two
(2) years after he had notice of the alleged
fraud. Paul also argues that Lopez failed to
allege or prove any grounds sufficient to vacate
a judgment based on fraud and that Lopez
should have been estopped from asserting pa-
The Oklahoma Bar Journal
939
rental rights after failing to assert those rights
for seven (7) years.
¶7 Lopez has failed to file a response brief.
Therefore, this appeal proceeds on Paul’s brief
only. “Where there is an unexcused failure to
file an answer brief, this Court is under no duty
to search the record for some theory to sustain
the trial court judgment; and where the brief in
chief is reasonably supportive of the allegations of error, this Court will ordinarily reverse
the appealed judgment with appropriate directions.” Cooper v. Cooper, 1980 OK 128, ¶ 6, 616
P.2d 1154; Okla.Sup.Ct.R. 1.10. However, “[r]
eversal is never automatic on a party’s failure
to file an answer brief.” Enochs v. Martin Props.,
Inc., 1997 OK 132, ¶ 6, 954 P.2d 124. If “the
record presented fails to support the error
alleged in the brief of the party who lost below,
the decision to be reviewed cannot be disturbed. It is presumed correct until the contrary is shown by the record.” Id.
¶8 The UPA went into effect November 1,
2006, which was after Paul executed the
acknowledgment of paternity February 8, 2005.
According to the UPA “[a] proceeding to adjudicate parentage or an acknowledgment of
paternity which was commenced or executed
before November 1, 2006, is governed by the
[UPA].” 10 O.S.Supp.2006, § 7700-902 (emphasis
added). “[A] valid acknowledgment of paternity
signed by both parents is equivalent to an adjudication of paternity of a child and confers upon
the acknowledged father all of the rights and
duties of a parent.” Id. § 7700-305(A). Paul
signed the acknowledgment of paternity February 8, 2005. At that point, Paul became A.P.’s
acknowledged father. Section 7700-609 of the
UPA provides, in pertinent part:
If a child has an acknowledged father or an
adjudicated father, an individual, other
than the child, who is neither a signatory to
the acknowledgment of paternity nor a
party to the adjudication and who seeks an
adjudication of paternity of the child shall
commence a proceeding not later than two
(2) years after the effective date of the
acknowledgment or adjudication.
10 O.S. § 7700-609(B). Lopez is an individual,
other than the child, who is not a signatory to
the acknowledgment of paternity and is seeking an adjudication of paternity. Lopez commenced this proceeding April 25, 2012. The
effective date of Paul’s acknowledgment of
paternity was February 8, 2005. Lopez sought
940
adjudication more than two (2) years after the
effective date of Paul’s acknowledgment.
Under the UPA, Lopez’s opportunity to challenge Paul’s acknowledgment of paternity
expired in February 2007.
¶9 Prior to the adoption of the UPA, 10 O.S.
§ 70 provided that if more than sixty days have
passed since the signing of the statement
acknowledging paternity, “a signed voluntary
acknowledgment of paternity may be challenged in court only on the basis of fraud,
duress, or material mistake of fact, with the
burden of proof upon the challenger.” 10
O.S.Supp.2005 § 70 (repealed by Laws 2006, HB
2967, c. 116, § 62, eff. November 1, 2006). Section 70 did not contain a time limitation, but
according to 12 O.S.2001 § 1038, a proceeding
to vacate an order based on fraud pursuant to
12 O.S.2001 § 1031(4) must be commenced
within two (2) years after the filing of the
order.
¶10 The facts in this case are strikingly similar to the facts in the pre-UPA case Hill v.
Blevins, 2005 OK 11, 109 P.3d 332. While Howard Hill and Diane Blevins were living together, Blevins used a home pregnancy test to confirm she was pregnant. See id. ¶ 4. When
Blevins was six months pregnant, she ended
the relationship with Hill. See id. ¶ 5. When
Blevins gave birth September 23, 1997, Hill was
incarcerated. See id. ¶ 6. Blevins alleged that
David Sawyer was the father. See id. Paternity
was established by an affidavit signed by
Blevins declaring David Sawyer to be the
father. See id. ¶ 7. Six years later, Hill filed a
petition to establish paternity and a motion to
vacate the affidavit declaring Sawyer to be the
father. See id. ¶¶ 2, 11. The Supreme Court of
Oklahoma applied 10 O.S. § 1031 and § 1038.
The Court recognized that because a statement
acknowledging paternity has the same legal
effect as an order in a court, the district court
has the power to vacate such an order for fraud
practiced by the successful party. See Hill, 2005
OK 11, ¶ 10 (citing 12 O.S.2001 § 1031(4)). The
Court explained:
Section 1038 is a general statute of limitation applicable to proceedings brought
under § 1031. With regards to subsection 4,
where the complaining party alleges that
an order has been obtained by fraud, proceedings to vacate that order must be commenced within two years after the order
was made. The complaining party need not
have actual notice of the fraud. Construc-
The Oklahoma Bar Journal
Vol. 85 — No. 12 — 4/19/2014
tive notice of fraud from public records,
required by law to be kept, is sufficient to
set the statute of limitations in motion.
fore, based on the Oklahoma Supreme Court’s
interpretation of pre-UPA law in Hill, Lopez’s
paternity action is time-barred.1
Hill, 2005 OK 11, ¶ 10. The Supreme Court held
that Hill’s paternity suit was time-barred:
¶12 We also note that the October 7, 2008
custody order did not establish paternity. Paternity had been previously established by the
acknowledgment of paternity signed by Paul
February 8, 2005. The trial court remarked in
the October 7, 2008 custody order that Paul
“was previously found to be the father of the
minor child. [Paul] signed on February 8, 2005,
a DHS affidavit acknowledging being the father
of the minor child. No objection has been
filed.” The trial court then awarded sole custody to Paul. A proceeding to vacate an order
for fraud practiced by the successful party in
obtaining the order must be commenced within two (2) years of the filing of the order. See 12
O.S. §§ 1031(4), 1038. The opportunity to vacate
the October 7, 2008 order of custody expired in
October 2010. Lopez commenced this proceeding in 2012.
Hill is chargeable with knowledge that a
positive pregnancy test administered on
December 25, 1996, is likely to be followed
by the birth of a child approximately forty
weeks later, that is, around September 30,
1997. D.S. was born September 23, 1997.
Instead of making inquiry about the birth,
the issuance of a birth certificate, or matters
of support and visitation, Hill waited until
the child was almost six years old before he
filed suit. The means of discovery of the
alleged fraud were no less available to Hill
in the fall of 1997 than they were five years
later in June of 2002. So, even if Blevins’
naming of Sawyer as the father was false,
means of discovering the alleged fraud
were readily available to Hill any time
from and after the issuance of the birth certificate on October 17, 1997, expiring two
years later in October of 1999. This suit,
filed nearly four years subsequent, July
2003, was correctly found to be time-barred
by the trial court.
Id. ¶ 11.
¶11 Paul acknowledged paternity February
8, 2005. Because an acknowledgment of paternity has the same legal effect as an order in a
court, the district court has the power to vacate
such an order for fraud practiced by the successful party. See Hill, 2005 OK 11, ¶ 10 (citing
12 O.S.2001 § 1031(4)). Where the complaining
party alleges that an order has been obtained
by fraud, proceedings to vacate that order
must be commenced within two (2) years after
the order was made. 10 O.S. § 1038. Lopez has
been chargeable with knowledge of his biological child since February 2005. It is undisputed that Lopez always believed he was A.P.’s
biological father, and Paul always believed he
was not A.P.’s biological father. Lopez also testified that he learned of A.P.’s birth a few days
after delivery and that he has known since then
that Paul’s name was on her birth certificate.
The means of discovering the alleged fraud
were no less available to Lopez in February
2005 than they were in April 2012. Lopez waited until the child was seven (7) years old to
intervene, seek vacation of the 2008 custody
order, and seek to establish paternity. ThereVol. 85 — No. 12 — 4/19/2014
¶13 Even if Lopez had standing to intervene
and the motion to vacate was timely filed, only
the custody, visitation, and child support orders
were subject to vacation. Paternity was established in February 2005, not in the October
2008 order. As previously discussed, no objection was made to Paul’s acknowledgment of
paternity within two (2) years. Furthermore,
Lopez failed to prove the necessary elements
for vacation based on fraud.
[I]n a proceeding under § 1031 to vacate an
earlier judgment on the grounds of fraud,
the petitioner must: (1) show that he (or
she) acted without delay in asserting his
(or her) rights after discovering the fraud,
(2) establish that he (or she) used diligence
in the original action in trying to discover
and expose the fraud, (3) provide clear and
convincing evidence of the fraud, and (4)
demonstrate that there is a substantial likelihood that a new trial will have a different
result.
Patel v. OMH Medical Center, Inc., 1999 OK 33, ¶
38, 987 P.2d 1185. Lopez did not act without
delay in asserting his rights after discovering
the alleged fraud, and he did not provide clear
and convincing evidence that Paul committed
fraud. Lopez has had notice of the alleged fraud
since February 2005. Paul did not misrepresent
the facts to obtain custody in 2008. Statutorily,
paternity had been established in favor of Paul
when his 2005 acknowledgment of paternity
The Oklahoma Bar Journal
941
went unchallenged. Therefore, Paul’s statement
that “[n]o person or party other than the parties
hereto has or claims to have any custody or visitation rights concerning the parties’ minor child”
was legally correct.
¶14 The trial court determined that in 2008,
Paul had a duty to notify the trial court that
Lopez was the “natural” father and to notify
Lopez that he was seeking custody. Such duty
does not exist. The Supreme Court explained in
Hill that “[t]he significance of the biological
connection of a father to a child is that it gives
the father an opportunity to develop a relationship with the child. A trial judge or a litigant is
not required to give special notice to a nonparty who is presumptively capable of asserting and protecting his own rights.” Hill, 2005
OK 11, ¶ 12 (citing Matter of C.J.S., 1995 OK 70,
¶¶ 16, 17, 903 P.2d 304). Lopez admitted that he
always believed he was A.P.’s biological father
and that since her birth, he knew Paul was
named on the birth certificate as her legal
father. Lopez took no action to assert his rights
until the child was seven (7) years old. Paul, in
exercising his right to custody as the legal
father of A.P., was not required to notify Lopez.
Lopez had the knowledge and a window of
opportunity to assert parental rights but failed
to do so, resulting in the extinguishment of his
rights.
¶15 We hold the trial court abused its discretion by vacating the October 7, 2008 order of
custody.
¶16 REVERSED.
JOPLIN, P.J., and HETHERINGTON, V.C.J.,
concur.
1. In Sprowles v. Thompson, 2010 OK CIV APP 80, 239 P.3d 981, Division IV of the Oklahoma Court of Civil Appeals determined that 10
O.S.Supp.2006 § 7700-308 was a statute of repose, rather than a statute
of limitations. The court explained that because § 7700-308 cut off the
right of an acknowledged father to challenge the acknowledgment
based on fraud after two (2) years, whether or not the acknowledged
father had discovered the alleged fraud, it was a statute of repose and
could not be applied retroactively. See id. ¶¶ 14-16. Division IV distinguished Sprowles from Hill, because “the Oklahoma Supreme Court
did not cite or otherwise apply § 70 in reaching its decision” in Hill. Id.
¶ 21. In Sprowles, Division IV held that the more specific ¶ 70 controlled over the more general provisions of 12 O.S. §§ 1031, 1038. See id.
We note that the Supreme Court did acknowledge ¶ 70 in Hill. See Hill
v. Blevins, 2005 OK 11, ¶ 8, 109 P.3d 332. We will follow mandatory
Supreme Court authority on this issue.
942
The Oklahoma Bar Journal
Vol. 85 — No. 12 — 4/19/2014
THE MUSCOGEE (CREEK) NATION DISTRICT COURT
Presents the 12th Annual
“DOING BUSINESS IN INDIAN COUNTRY:
200 Years of Creek Legal History”
Continuing Legal Education
River Spirit Events Center
May 15-16, 2014 • 8330 Riverside Pkwy • Tulsa, Oklahoma 74136
Registration Fee (two days): $225.00 • On Site Registration: $250.00 • Single Day Rate: $150.00
This course has been approved by the Oklahoma Bar Association Mandatory Continuing Legal Education
Commission for 12 hours of CLE Credit, including 1 hour of legal ethics credit.
REGISTRATION FORM — 2014 “DOING BUSINESS IN INDIAN COUNTRY”
Name: _______________________________________________________________ Date: ______________________
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E-Mail: _____________________________________________________ Phone: ______________________________
Make check payable to: Muscogee (Creek) Nation District Court - CLE Program
Mail check and form to:
Muscogee (Creek) Nation District Court — P.O. Box 652 • Okmulgee, OK 74447
For more information contact the District Court @ 918.758.1400 or by e-mail: [email protected]
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Make your hotel reservations by May 1st for a CLE-discounted rate using Code “DBIO”
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WESTERN FARMERS ELECTRIC COOPERATIVE (WFEC)
STAFF ATTORNEY- ANADARKO, OK
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Under the general supervision of the V.P. Legal and Corporate Services, the Staff Attorney provides
legal advice and counsel to Cooperative management and personnel on a variety of topics including:
regulatory compliance, contract development, contract administration, litigation management, legal
correspondence, and the creation and review of business documents such as contracts, interconnection agreements, transmission service agreements, and regulatory matters involving power supply,
transmission services and reliability. Incumbent researches, drafts, reviews, interprets and negotiates
legal documents on behalf of various departments on a wide range of legal questions. From time to
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a primary focus will be responsibility for North American Electric Reliability Corporation compliance and will indirectly manage a team of compliance specialists in various operating functions.
Requires a J.D. or LL.B degree from an accredited law school and five years of progressively
responsible legal experience. Requires a valid driver’s license and a licensed to practice law in the
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WFEC IS AN EQUAL OPPORTUNITY EMPLOYER
EOE/M/W/D/V
Vol. 85 — No. 12 — 4/19/2014
The Oklahoma Bar Journal
943
Disposition of Cases
Other Than by Published Opinion
COURT OF CRIMINAL APPEALS
Wednesday, March 26, 2014
RE-2013-371 — On September 7, 2011, Appellant Roy Glendell Tryon pled guilty in Case
No. CF-2010-7697. Count 1 was dismissed per
the plea agreement. Appellant was sentenced
to ten years imprisonment with all but one
year suspended. On October 15, 2012, the State
filed an Application to Revoke Appellant’s suspended sentence alleging Appellant committed the new crime of Assault With a Dangerous
Weapon as alleged in Oklahoma County District Court Case No. CF-2012-4440. Following
an April 2, 2013, revocation hearing, the Honorable Ray C. Elliott, District Judge, found
Appellant had violated the rules and conditions of his probation and revoked Appellant’s
suspended sentence in full. Appellant appeals.
The revocation of Appellant’s suspended sentence is AFFIRMED. Opinion by: Smith, V.P.J.:
Lewis, P.J.: concur; Lumpkin, J.: concur; C.
Johnson, J.: concur; A. Johnson, J.: concur.
F-2013-271 — Marquice Donnell Savage,
Appellant, was tried by jury for the crimes of
Count I - Eluding a Police Officer, Count III Driving Without a Driver’s License and Count
IV - Unsafe Lane Change, all after former conviction of two or more felonies in Case No.
CF-2012-2794 in the District Court of Tulsa
County. The jury returned a verdict of guilty
and recommended as punishment three years
imprisonment on Count I, a $200 fine on Count
III and a $300 fine on Count IV. The trial court
sentenced accordingly. From this judgment
and sentence Marquice Donnell Savage has
perfected his appeal. JUDGMENT AND SENTENCE AFFIRMED; the case is REMANDED
for an Order Nunc Pro Tunc correcting the
Judgment and Sentence in accordance with this
Opinion. Opinion by: Smith, V.P.J.; Lewis, P.J.,
concur; Lumpkin, J., concur in result; C. Johnson, J., concur; A. Johnson, J., concur.
F-2013-319 — On March 30, 2011, Appellant
Tyler Harrison Jackson pled guilty in Cleveland County District Court Case Nos. CF-2010942, CF-2010-943, CF-2010-992, CF-2010-993
and CF-2010-1378. On October 24, 2011, Appellant pled guilty in Cleveland County District
944
Court Case Nos. CF-2011-479 and CF-2011-480.
The parties agreed to delay sentencing in all
seven of these cases pending successful completion of the Drug Court program. The State
filed a second amended motion to terminate
from Drug Court and sentence Appellant on
March 4, 2013. Following a hearing on the second amended motion to terminate on March
18, 2013, the Honorable Tracy Schumacher,
District Judge, found Appellant had failed
Drug Court and terminated Appellant from
Drug Court. Appellant appeals. The termination of Appellant from Drug Court is AFFIRMED. Opinion by: Smith, V.P.J.; Lewis, P.J.:
concur; Lumpkin, J.: concur; C. Johnson, J.:
concur; A. Johnson, J.: concur.
Thursday, March 27, 2014
F-2013-0306 — Appellant, Timothy Denton
Vanhorn, II, pled guilty on November 7, 2011,
in Wagoner County District Court Case No.
CF-2011-276 to Count 1 – Exploitation of an
Elderly Person by Caretaker. Count 2, Obtaining Cash or Merchandise by Bogus Checks/
False Pretenses, was dismissed. Appellant was
given a seven year deferred sentence with rules
and conditions of probation, a $250.00 fine,
court costs, and restitution in the amount of
$25,000.00. The State filed an application to
accelerate the deferred judgment on May 7,
2012, alleging Appellant failed to pay restitution as ordered. Appellant was ordered to pay
$25,000.00 in restitution with monthly payments of $350.00 beginning January 5, 2012,
with a review every 180 days to increase the
payment, and the State alleged that Appellant
had not made a payment on the restitution.
Following an acceleration hearing on March
18, 2013, before the Honorable Darrell G. Shepherd, District Judge, the State’s application was
sustained and Judgment and Sentence was
entered. Appellant was sentenced to ten years
in the Department of Corrections. From this
judgment and sentence, Appellant has perfected his appeal. The acceleration of Appellant’s
deferred sentence in Wagoner County District
Court Case No. CF-2011-276 is AFFIRMED.
Opinion by: Lewis, P.J.; Smith, V.P.J., Concurs;
The Oklahoma Bar Journal
Vol. 85 — No. 12 — 4/19/2014
Lumpkin, J., Concurs; C. Johnson, J., Concurs;
A. Johnson, J., Concurs.
F-2012-1081 — Sohn Douglas Stone, Appellant, was tried by jury and found guilty of
Counts 1-5, lewd or indecent acts with a child
under sixteen (16), in violation of 21 O.S.Supp.
2009, § 1123, in the District Court of Cleveland
County, Case No. CF-2010-1827. The jury sentenced Appellant to fifty (50) years imprisonment in each count. The Honorable Tracy
Schumacher, District Judge, pronounced judgment and sentence, ordering Counts 1-2 served
concurrently, and Counts 3-5 served concurrently with each other, but consecutively to
Counts 1-2. The trial court sentenced accordingly. From this judgment and sentence, Sohn
Douglas Stone has perfected his appeal.
AFFIRMED Opinion by: Lewis, P.J.; Smith,
V.P.J., Concurs; Lumpkin, J., Concurs; C. Johnson, J., Concurs; A. Johnson, J., Concurs.
F-2013-530 — Terry Finch, Appellant, was
tried by jury for the crimes of Robbery with a
Firearm (Count 1), Possession of a Firearm
After a Juvenile Adjudication (Count 3), Kidnapping (Count 4), and Assault and Battery
with a Deadly Weapon (Counts 5 & 6) in Case
No. CF-2012-3261 in the District Court of Tulsa
County. The jury returned a verdict of guilty
and recommended as punishment seven years
imprisonment and a $10,000.00 fine on Count
1, ten years imprisonment and a $5,000.00 fine
on Count 3, twelve years imprisonment and a
$10,000.00 fine on Count 4, twenty-two years
imprisonment and a $10,000.00 fine on Count
5, and twenty years imprisonment and a
$10,000.00 fine on Count 6. The trial court sentenced accordingly and ordered the sentences on
Counts 1, 4, and 5 to run consecutively. The
Court further ordered Counts 3 and 6 to run
concurrently with each other and concurrently
with Counts 1, 4, and 5. From this judgment and
sentence Terry Finch has perfected his appeal.
The Judgment and Sentence of the District Court
is AFFIRMED. Opinion by: A. Johnson, J.; Lewis,
P.J., concurs; Smith, V.P.J., concurs; Lumpkin, J.,
concurs; C. Johnson, J., concurs.
F-2013-248 — Stacey Kipp Pratt, Appellant,
was tried by jury for the crime of Sexual Battery, After Former Conviction of Two or More
Felonies, in Case No. CF-2012-109 in the District Court of Washington County. The jury
returned a verdict of guilty and set punishment
at eighteen years imprisonment. The trial court
sentenced accordingly. From this judgment
and sentence Stacey Kipp Pratt has perfected
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his appeal. The Judgment and Sentence of the
District Court is AFFIRMED. Opinion by: A.
Johnson, J.; Lewis, P.J., concurs; Smith, V.P.J.,
concurs; Lumpkin, J., concurs; C. Johnson, J.,
concurs.
RE-2013-372 — On June 30, 2010, Appellant
Delvin Dewayne Scroggins pled guilty in Case
Nos. CF-2008-6588, CF-2009-1798 and CF-20102090. Appellant was sentenced to five years
imprisonment on Count 1 and one year imprisonment on Count 2 in Case No. CF-2008-6588.
Appellant was sentenced to fifteen years
imprisonment in both Case Nos. CF-2009-1798
and CF-2010-2090. Following judicial review
on August 17, 2011, all three cases were modified to suspend the remainder of Appellant’s
sentences. On March 27, 2013, the State filed
Amended Applications to Revoke Appellant’s
suspended sentences in Case Nos. CF-20086588, CF-2009-1798 and CF-2010-2090. Following an April 2, 2013, revocation hearing on the
Amended Applications to Revoke, The Honorable Ray C. Elliott, District Judge, found Appellant had violated his suspended sentences and
revoked them in full. Appellant appeals. The
revocation of Appellant’s suspended sentences
is AFFIRMED. Opinion by: Lumpkin, J.; Lewis,
P.J.: concur; Smith, V.P.J., concur; C. Johnson, J.,
concur; A. Johnson, J., concur.
S-2013-303 — Hershell Eugene Anderson
was charged with first degree murder in Oklahoma County district court case number
CF-2012-672. The district court, Honorable Ray
Elliott, District Judge, denied the State’s request
to introduce evidence under the identity exception of 12 O.S.2011, § 2404(B), which would
expose the jury to evidence that the defendant
had committed another crime. In doing so, the
trial court suppressed the evidence the State
sought to introduce. The State now appeals the
district court’s ruling suppressing evidence
pursuant to 22 O.S.2011, § 1053(6), arguing that
the District Court erred, as a matter of law, in
suppressing evidence of “other crimes,” which
prove the defendant’s identity. From this ruling, the State has perfected their appeal.
Because we find the evidence sought to be
introduced by the State is proper under the
identity exception to the introduction of other
crimes evidence under 12 O.S.2011, § 2404(B),
the district court’s decision suppressing this
evidence is REVERSED, and this case is
REMANDED for further proceedings not
inconsistent with the Opinion. Opinion by:
Lewis, P.J.; Smith, V.P.J., Concurs in Results;
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Lumpkin, J., Concurs; C. Johnson, J., Concurs;
A. Johnson, J., Concurs.
Monday, March 31, 2014
F-2012-1109 — Robert Eugene Lee, Appellant, was tried by jury for the crimes of Lewd
or Indecent Acts with a Child Under 12 (Count
1) and Lewd Molestation (Count 2) in Case No.
CF-2011-313 in the District Court of Grady
County. The jury returned a verdict of guilty and
set punishment at twenty-five years imprisonment on Count 1 and twenty years imprisonment on Count 2. The trial court sentenced
accordingly. From this judgment and sentence
Robert Eugene Lee has perfected his appeal. The
Judgment and Sentence of the District Court is
AFFIRMED. Opinion by: A. Johnson, J.; Lewis,
P.J., concurs; Smith, V.P.J., concurs; Lumpkin, J.,
concurs; C. Johnson, J., concurs.
F-2013-0306 — Patricia Burney, Appellant,
was tried by jury for the crime of First Degree
Murder in Case No. CF-2011-88B in the District
Court of Wagoner County. The jury returned a
verdict of guilty and recommended as punishment life imprisonment without the possibility
of parole. The trial court sentenced accordingly.
From this judgment and sentence Patricia Burney has perfected her appeal. AFFIRMED.
Opinion by: Smith, V.P.J.; Lewis, P.J., concur in
result; Lumpkin, J., Cconcur in result; C. Johnson, J., concur; A. Johnson, J., concur.
F-2013-187 — Rico Antwoine Berry, Appellant, was tried by jury for the crimes of Count I
— Murder in the First Degree and Count II —
Child Neglect in Case No. CF-2009-6018 in the
District Court of Oklahoma County. The jury
returned a verdict of guilty and recommended
as punishment life imprisonment without the
possibility of parole on Count I and life imprisonment on Count II. The trial court sentenced
accordingly. From this judgment and sentence
Rico Antwoine Berry has perfected his appeal.
AFFIRMED. Opinion by: Smith, V.P.J.; Lewis,
P.J., concur; Lumpkin, J., concur; C. Johnson, J.,
concur; A. Johnson, J., concur.
F-2013-424 — Gary Lee Dorl, Appellant, was
tried by jury for the crimes of Possession of
Controlled Dangerous substance, After Former
Conviction of Two or More Felonies (Count I),
and Unlawful Possession of Drug Paraphernalia (Count II), in Case No. CF-2011-81, in the
District Court of Noble County. The jury
returned a verdict of guilty and recommended
as punishment eighteen years imprisonment
and a $5,000.00 fine on Count I, and a $1,000.00
946
fine on Count II. The trial court sentenced
accordingly. From this judgment and sentence
Gary Lee Dorl has perfected his appeal.
AFFIRMED. Opinion by: C. Johnson, J.; Lewis,
P.J., Concurs; Smith, V.P.J., Concurs; Lumpkin,
J., Concurs; A. Johnson, J., Concurs.
Tuesday, April 1, 2014
F-2012-945 — Appellant, Thomas Lewis, Jr.,
was tried by jury and convicted of Assault and
Battery With a Deadly Weapon (21 O.S.2011, §
652), After Former Conviction of Two or More
Felonies, in the District Court of Tulsa County,
Case Number CF-2012-812. The jury recommended as punishment imprisonment for
twenty years. The trial court sentenced accordingly and ordered Appellant to pay costs,
including a $2,500.00 assessment for the costs
of representation. It is from this judgment and
sentence that Appellant appeals. AFFIRMED.
Opinion by: Lumpkin, J.; Lewis, P.J., concur;
Smith, V.P.J., concur; C. Johnson, J., concur; A.
Johnson, J., concur.
Thursday, April 3, 2014
F-2013-243 — Danny Ray Reisman, Appellant, was tried by jury for the crime of First
Degree Rape in Case No. CF-2012-25 in the
District Court of Carter County. The jury
returned a verdict of guilty and set punishment
at twenty-five years imprisonment. The trial
court sentenced accordingly. From this judgment and sentence Danny Ray Reisman has
perfected his appeal. The Judgment and Sentence of the District Court is AFFIRMED. Opinion by: A. Johnson, J.; Lewis, P.J., concurs in
results; Smith, V.P.J., concurs; Lumpkin, J., concurs in results; C. Johnson, J., concurs.
COURT OF CIVIL APPEALS
(Division No. 1)
Friday, April 4, 2014
111,442 — In the Matter of the Estate of Lottie
M. Smith, Deceased: Mary Jewell, Appellant,
vs. Betty Dixon, Appellee. Appeal from the
District Court of Haskell County, Oklahoma.
Honorable Brian C. Henderson, Judge. Appellant Mary Jewell seeks review of the trial
court’s orders denying her creditor’s claim and
approving the final account of Appellee Betty
Dixon, Personal Representative of the Estate of
Lottie M. Smith, Deceased. In her first proposition, Appellant asserts the trial court erred in
denying her creditor’s claim for the funeral
expenses she paid, and argues that §591 of title
58, O.S., requires payment of funeral expenses
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Vol. 85 — No. 12 — 4/19/2014
from the estate before the payment of any other
expenses. In her second proposition, Appellant
asserts the trial court erred in its division and
distribution of Decedent’s personal property,
and particularly, holding she was entitled only
to the personal property she removed. Appellant withdrew about $385,000.00 from Decedent’s accounts as surviving joint tenant upon
Decedent’s demise, from which she paid funeral expenses. There is no evidence one way or
the other establishing whether Appellant was
placed on Decedent’s accounts merely as a convenience, or whether Decedent intended a gift of
the accounts to Appellant upon her death. Under
these circumstances, we cannot say the trial
court erred as a matter of law or fact in denying
Appellant’s creditor’s claim for the Decedent’s
funeral expenses. As to her second proposition,
the trial court determined that Appellant apparently removed various items of Decedent’s personal property prior to the order for sale, and
that those items should be offset against any
interest Appellant may have had against the
proceeds from the sale of the remaining personal
property. Under the circumstances of this case,
we defer to the trial court’s judgment on the
evidence, and hold the trial court’s judgment is
neither contrary to law, nor the clear weight of
the evidence. AFFIRMED. Opinion by Joplin,
P.J.; Hetherington, V.C.J., concurs, and Buettner,
J., concurs in result.
111,796 — Sarah N. Woods, formerly Hay,
Petitioner/Appellant, vs. Brandon Hay, Respondent/Appellee. Appeal from the District
Court of Comanche County, Oklahoma. Honorable Keith B. Aycock, Judge. Petitioner/
Appellant Sarah Woods (Mother) appeals the
trial court’s order dismissing her motion to
modify visitation. The trial court agreed with
Respondent/Appellee Brandon Hay (Father)
that all of the allegations had been tried and
decided in a juvenile proceeding. The court
ruled in favor of Father based on judicial estoppel. We find the trial court properly found that
the parties could not relitigate Mother’s allegations against Father. We AFFIRM the dismissal
of Mother’s motion to modify visitation. Opinion by Buettner, J.; Joplin, P.J., and Hetherington, V.C.J., concur.
112,068 — Ram, Inc., d/b/a W.E. Allford Propane, Plaintiff/Appellant, vs. Meryl D. Holmes,
Defendant/Appellee. Appeal from the District
Court of Haskell County, Oklahoma. Honorable
Brian C. Henderson, Judge. Plaintiff seeks review
of the trial court’s order granting the motion
Vol. 85 — No. 12 — 4/19/2014
for summary judgment of Meryl D. Holmes
(Defendant) in Plaintiff’s action to recover
damages for breach of a non-competition agreement. In this appeal, Plaintiff asserts the trial
court erred as a matter of law in holding the
non-competition agreement void and unenforceable as contrary to public policy. In the
present case, the non-competition clause prohibits Defendant from selling “propane for
another propane company within 50 miles of
any existing W.E. Allford Propane customer for
a 24 month period.” According to the evidentiary materials adduced by Defendant, this
area covers most of eastern Oklahoma and
parts of Arkansas and Texas. The effect of the
agreement prevents Defendant from performing “any work ‘in the same business as that
conducted by the former employer or in a
similar business as that conducted by the former employer’” in almost half of the state, and,
in our view, runs contrary to both the express
terms and spirit of 15 O.S. §219A(A). Moreover,
the contract contains no severability clause.
Reformation of the contract would require the
redefinition of material terms, including “customer,” and a material change in the geographical reach of the agreement, beyond the proper
bounds of judicial modification. AFFIRMED.
Opinion by Joplin, P.J.; Hetherington, V.C.J.,
and Buettner, J., concur.
112,192 — Mark Edward Purdin, Petitioner,
vs. Oklahoma City Public Schools, CompSource Oklahoma, and The Workers’ Compensation Court, Respondents. Proceeding to Review an Order of a Three-Judge Panel of The
Workers’ Compensation Court of Existing
Claims. Petitioner Mark Edward Purdin seeks
review of an order of the three-judge panel of
The Workers’ Compensation Court of Existing
Claims which affirmed the trial court’s finding
that Purdin did not sustain a compensable
injury arising in the course and scope of his
employment with Respondent Oklahoma City
Public Schools. Purdin sought compensation
for an injury allegedly sustained during an
after hours, voluntary union meeting away
from his place of employment. The panel’s
order is not against the clear weight of the evidence and we SUSTAIN. Opinion by Buettner,
J.; Joplin, P.J., and Hetherington, V.C.J., concur.
112,293 — Gwendolen Murphy, Plaintiff/
Appellant, vs. Bryan C. Kirkendoll, Defendant/Appellee, Kevin Calip and Tyson Lnuk,
Defendants. Appeal from the District Court of
Custer County, Oklahoma. Honorable Donna
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947
L. Dirickson, Judge. Plaintiff seeks review of
the trial court’s order entered on the Motion to
Settle Journal Entry of Defendant Kirkendoll
after the trial court granted Defendant’s Special Appearance, Motion to Quash Service and
Motion to Dismiss. This appeal stands submitted on the trial court record, and for her sole
proposition of error, Plaintiff frames the issue
as, “Whether the Trial Court erred in approving a Journal Entry indicating it did not have
jurisdiction?” The trial court’s order is consistent with and responsive to the allegations and
averments of Defendant’s Motion to Quash
and Motion to Dismiss, challenging the trial
court’s lack of jurisdiction over his person.
Upon de novo review of the trial court’s conclusion of no jurisdiction, we hold the trial
court did not err as a matter of fact or law in
approving Defendant’s proposed order.
AFFIRMED. Opinion by Joplin, P.J.; Hetherington, V.C.J., and Buettner, J., concur.
(Division No. 2)
Thursday, March 27, 2014
112,156 — Olivia Diane Neely, an individual,
Plaintiff/Appellant, v. Event 1 Productions,
Inc., a domestic corporation, Defendant/Appellee. Appeal from an order of the District
Court of Oklahoma County, Hon. Thomas E.
Prince, Trial Judge. The trial court plaintiff,
Olivia Diane Neely (Neely), appeals an Order
granting summary judgment to the defendant,
Event Productions, Inc. (EPI). This appeal proceeds under the provisions of Okla. Sup. Ct.
Rule 1.36, 12 O.S.2011, Ch. 15, app. 1. The
undisputed facts show that Neely knew about
and appreciated the danger of the carpet hazard causing her fall. Her knowledge and appreciation of the danger were acquired by her
personal observations and conclusions made
shortly before the walked to the area where she
fell. She also agreed that the carpet installation
was visible in the place where she tripped and
fell. Neely does not have a claim based upon
the carpet defect or danger. The carpet defect
or danger was well-known to her and was
obvious and capable of being avoided by her in
the exercise of ordinary care. Therefore, the
Order granting summary judgment is affirmed.
AFFIRMED. Opinion from Court of Civil
Appeals, Division II, by Rapp, J.; Fischer, P.J.,
concurs, and Thornbrugh, J., concurs in result.
111,668 — In the Matter of I.G., alleged
deprived child. Shannon Gadson, Appellant,
vs. State of Oklahoma, Appellee. Appeal from
Order of the District Court of Oklahoma Coun948
ty, Hon. Richard W. Kirby, Trial Judge. Shannon Gadson (Mother) appeals the district
court’s judgment entered on a jury verdict terminating her parental rights to her minor child,
IG, based on a finding that Mother had been
convicted of child abuse, 10A O.S.2011§ 1-4904(B)(8)(d), and her parental rights to three
other children had been terminated. The record
demonstrates that the State produced clear and
convincing evidence of Mother’s child abuse
conviction and that termination of Mother’s
parental rights to IG was in the child’s best
interests. Mother has failed to show that the
evidentiary rulings made by the district court
warrant reversal. Therefore, we affirm the
judgment terminating Mother’s parental rights
to IG. AFFIRMED. Opinion from Court of Civil
Appeals, Division II by Fischer, P.J.; Rapp, J.,
and Thornbrugh, J., concur.
111,582 — Abel Archie, Petitioner, vs. American Airlines, Inc.; Oklahoma State University
Medical Center Trust; New Hampshire Insurance
Company; Hartford Fire Insurance Company
and/or The Oklahoma Workers’ Compensation
Court. Appeal from Order of the Workers’ Compensation Court, Hon. Eric W. Quandt, Trial
Judge. Claimant seeks review of an order of the
Workers’ Compensation Court awarding benefits for 40.9 % permanent partial disability
(PPD) for hearing loss to both ears, which the
trial court apportioned between Claimant’s previous and current employers. Claimant asserts
the trial court erred in setting the PPD benefits
at the 1997 rate in effect on his date of first
awareness of work-related injury. For injuries
occurring prior to the October 23, 2001, the
effective date of 85 O.S.2001 § 11(B)(5), the law
then in effect relied on “awareness” to determine the date of a cumulative trauma injury,
and permitted apportionment of liability among
successive employers. See CNA Ins. Co. v. Ellis,
2006 OK 81, ¶¶ 9-12, 15, 148 P.3d 874. The rights
and obligations of the parties were established
in 1997, when Claimant first became aware of
an employment-related hearing loss. At that
time, the maximum PPD rate was computed at
$213 per week. The trial court correctly calculated the award of PPD benefits against OSUMC
using the 1997 rate. Opinion from Court of Civil
Appeals, Division II by Fischer, P.J.; Rapp, J.,
and Thornbrugh, J., concur.
Wednesday, April 2, 2014
111,135 — In the Matter of the Income Tax Protest of Roy N. and Angela D. Skousen. Roy N.
Skousen and Angela D. Skousen, Appellants, vs.
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Vol. 85 — No. 12 — 4/19/2014
Oklahoma Tax Commission, Appellee. Appeal
from the Oklahoma Tax Commission. Having
reviewed the record and applicable law, we conclude that the OTC’s order is correct and is thoroughly explained by the ALJ’s findings, conclusions and recommendations. We therefore
affirm the order of the OTC denying the Skousens’ protest. AFFIRMED PURSUANT TO
SUPREME COURT RULE 1.202(d). Opinion
from Court of Civil Appeals, Division II, by
Fischer, P.J.; Thornbrugh, J., concurs, and Rapp,
J., dissents.
(Division No. 3)
Friday, March 28, 2014
109,376 — In Re the Marriage of Amber
Dawn Huffman-Sanderson and Erick Dewayne
Sanderson: Amber Dawn Huffman-Sanderson,
Petitioner/Appellant, vs. Erick Dewayne Sanderson, Respondent/ Appellee. Appeal from the
District Court of Cleveland County, Oklahoma.
Honorable Timothy Olsen, Judge. Petitioner
(Wife) appeals from the trial court’s March 21,
2011 Decree of Divorce and Dissolution of Marriage, which awarded Respondent (Husband)
custody of one of the parties’ two minor children, established a visitation schedule, calculated child support, and divided marital property. Wife challenges the trial court’s custody
determination and property division. Additionally, she appeals from the trial court’s subsequent determinations memorialized in its
April 28, 2011 Journal Entry, which denied both
parties’ Motions to Modify Custody, denied
Wife’s Motion for Back Child Support, and
granted Husband’s Motion to Terminate Alimony. The record reflects this was a high conflict
divorce case. Wife designated the transcript for
the July 19-20, 2010 hearing on the merits of the
divorce proceeding for inclusion in the record on
appeal. However, Wife could not afford to pay
for the transcripts and was unsuccessful in her
quest for a trial court order assessing the cost of
these transcripts against Husband. Thus, the
transcripts are not included in the record. As
the appellant, Wife has the burden of producing a sufficient record to demonstrate error.
Her pro se status is ineffectual in alleviating this
burden. Absent a record showing otherwise, an
appellate court presumes that the trial court
did not err. We hold the trial court’s Decree of
Divorce and Journal Entry, including the findings of fact and conclusions of law upon which
they are based, are sufficiently supported by
the record, adequately explains the trial court’s
decision and are not against the clear weight of
Vol. 85 — No. 12 — 4/19/2014
the evidence nor an abuse of the trial court’s
discretion. The court’s judgments are affirmed
under Rule 1.202(b), (d) and (e). AFFIRMED.
Opinion by Mitchell, J.; Bell, P.J., and Goree, J.,
concur.
110,126 — John R. Couch, Jr., Plaintiff/Appellant, vs. Charles Coy White, Sr., Ommie Oleta
White, and the Oleta White Revocable Trust,
Defendants/Appellees. Appeal from the District Court of Oklahoma County, Oklahoma.
Honorable Barbara Swinton, Judge. Appellant
brought an action against Appellees to quiet
title to approximately 20 acres of real property
located in rural Oklahoma County. Appellant
contends there was a change in the course of
the North Canadian River which created an
oxbow lake. He states the boundary was the
former course of the North Canadian River,
and that before the change in the river, the 20
acres was located “north of the river” and
within the legal description of Lot 2. After the
change in the river, the description of Lot 2
“north of the river” no longer included the 20
acres because the course of the river was now
farther north than before. Appellant argues all
evidence at trial showed the boundary was the
former course of the river. In a boundary dispute over whether a change in a riverbed was
a result of avulsion or accretion, the burden lies
with the party claiming avulsion to show by a
preponderance of the evidence the changes
made in deposits of land were violent and subject to being perceived while they were going
on. Given the time frame of the photographs
presented at trial and the survey presented, we
hold it was not against the clear weight of the
evidence for the trial court to find Appellant’s
evidence insufficient to show the cause and
location of the boundary change alleged. While
evidence showed there was a change in the
course of the river, nothing presented by either
side was sufficient to prove the change was
due either to avulsion or accretion. The decision of the trial court is affirmed in part and
remanded with instructions to enter an order
with the full legal description of both Lots 2
and 5 in accordance with this opinion. AFFIRMED IN PART AND REMANDED WITH
INSTRUCTIONS. Opinion by Mitchell, J.; Bell,
P.J., and Goree, J., concur.
111,320 — Toby L. Johnson, Plaintiff/Appellant, vs. Dolese Bros. Co., an Oklahoma Corporation, Defendant/Appellee. Appeal from the
District Court of Oklahoma County, Oklahoma.
Honorable Roger H. Stuart, Judge. Appellant
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949
(Johnson) appeals from the trial court’s grant
of summary judgment to Appellee (Dolese) in
this retaliatory discharge action. Johnson contends his employment was terminated in violation of 85 O.S. 2011 §341, and that there were
disputed material facts that prevented summary judgment. For purposes of summary
judgment, Dolese concedes the first three elements of Johnson’s prima facie case: Johnson
was employed by Dolese, he suffered an onthe-job injury, and his medical treatment put
Dolese on notice of a work-related injury.
Dolese argues Johnson failed to satisfy the
fourth element because he did not produce
evidence sufficient to support a legal inference
that his discharge was significantly motivated
by retaliation for exercising his statutory rights.
For purposes of establishing a prima facie case,
the evidence presented is sufficient to support
a legal inference that Johnson’s discharge was
significantly motivated by retaliation. We further find reasonable people could differ regarding Dolese’s motive and explanation for firing
Johnson. We hold there exist genuine issues of
material fact precluding summary judgment.
REVERSED AND REMANDED FOR FURTHER PROCEEDINGS. Opinion by Bell, P.J.;
Mitchell, J., and Goree, J., concur.
(Division No. 4)
Thursday, March 13, 2014
110,814 — State of Oklahoma, ex rel., The
Oklahoma Board of Medical Licensure and
Supervision, Plaintiff/Appellee, vs. Bruce
Stewart Gilmore, M.D., License No. 15474,
Defendant/Appellant. Proceeding to review
an order of the Oklahoma State Board of Medical Licensure and Supervision. Dr. Bruce Stewart Gilmore, M.D. (Dr. Gilmore), appeals from
an order of the Oklahoma State Board of Medical Licensure and Supervision (Board) revoking his medical license. While the appeal was
pending, Dr. Gilmore sought and was granted
reinstatement of his license before the Board.
The legal issues Dr. Gilmore has presented on
appeal have become abstract and hypothetical;
thus, this Court has no ability to render effective relief in this particular case. The appeal is
therefore moot and is dismissed. DISMISSED.
Opinion from the Court of Civil Appeals, Division IV, by Goodman, J.; Thornbrugh, P.J., and
Rapp, J., concur.
111,655 — Kenneth Richard Parker, Susan
Rita Parker, and KRP, Ltd, Plaintiffs/Appellants, v. Floyd Joseph Hudson, Jr., Hartford
Equity Sales Company, Inc., and Hartford Life
950
Insurance Company, Defendants/Appellees.
Appeal from an Order of the District Court of
Tulsa County, Hon. Dana Lynn Kuehn, Trial
Judge. Plaintiffs/Appellants (collectively, the
Parkers) appeal the trial court’s Order granting
the motion to dismiss of Defendants/Appellees (collectively, Defendants). The issue presented on appeal is whether the Parkers’ tort
theories — i.e., negligence and various fraud
theories — and breach of an implied contract
theory are barred by the applicable statutes of
limitations. We conclude that they are and,
therefore, we affirm the Order granting Defendants’ motion to dismiss. In particular, as to the
negligence and breach of contract theories, the
fact that the Parkers were going to sustain
damages in the form of significant additional
taxes, plus interest, imposed by the IRS, and
out-of-pocket expenses for tax and legal advisors to investigate and rectify the situation,
became certain at a date such that the filing of
the petition in November 2012 was untimely
and barred by the applicable statutes of limitations. As to the fraud theories, circumstances
such as to put a reasonable person upon inquiry arose in April 2008, when the Parkers were
informed the IRS had disallowed a certain
deduction and had added it to their personal
taxable income for 2005. In the exercise of reasonable diligence, the fraud “could have or
should have” been discovered at this time, or,
at the latest, the statute of limitations began to
run in February 2010, by which time the Parkers were informed the Plan was, according to
the IRS, “illegal,” and that the IRS was going to
impose additional taxes, and interest, totaling
in excess of $100,000 for 2005 and 2006. In the
exercise of reasonable diligence, the alleged
fraud could have been discovered by this time,
more than two years before the filing of the
petition. Therefore, the fraud theories are
barred by the applicable two-year statute of
limitations. Consequently, we affirm. AFFIRMED. Opinion from Court of Civil Appeals,
Division IV, by Barnes, C.J.; Wiseman, P.J., and
Goodman, J., concur.
Friday, March 14, 2014
111,657 — BAC Home Loans Servicing, L.P.,
f/k/a Countrywide Home Loans Servicing,
L.P., Plaintiff/Appellee, vs. Houston E. Hill,
Defendant/Appellant. Appeal from an order
of the District Court of Oklahoma County,
Hon. Thomas E. Prince, Trial Judge, granting
summary judgment in favor of BAC Home
Loans Servicing, L.P., f/k/a Countrywide
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Home Loans Servicing, L.P. In this suit on a
promissory note and for foreclosure of a mortgage, the primary issue on appeal is whether
BAC is entitled to judgment as a matter of law.
The record establishes as a matter of law that
BAC as the holder of the note was entitled to
enforce the note and therefore had standing to
pursue this action. The trial court did not err in
granting summary judgment on the note and
foreclosing the mortgage. Finding no error, we
affirm the decision of the trial court. AFFIRMED.
Opinion from the Court of Civil Appeals, Division IV, by Wiseman, P.J.; Barnes, C.J., and
Goodman, J., concur.
Monday, March 17, 2014
110,840 — Bessie McCarty, Plaintiff/Appellee, v. Greg Parker and Monica Parker, Defendants/Appellants. Appeal from a Journal Entry
of Judgment from the District Court of Love
County, Oklahoma, Hon. Charles E. Roberts,
Trial Judge. Defendants/Appellants (Parkers)
appeal from that portion of a Journal Entry of
Judgment (Judgment) issued by the district
court at the conclusion of a non-jury trial in
which the court granted judgment quieting
title to certain real property in Plaintiff/Appellee (McCarty). The issues raised on appeal as to
that disputed property are whether the trial
court erred in determining that McCarty
acquired title through adverse possession, that
McCarty’s claim was not barred by the doctrine of laches, and that McCarty’s quiet title
action was not barred by principles of equity
and estoppel. Although the evidence was conflicting, the trial court’s findings that McCarty’s decades-long use of the disputed property was not permissive and thus that McCarty
had title through claim of right, and that
McCarty’s acts of dominion over the disputed
property by fencing and using the disputed
property without privilege to do so demonstrated the requisite adversity of title were not
against the clear weight of the evidence. Further, the trial court did not abuse its discretion
in finding that the equitable doctrines of laches
and estoppel did not bar McCarty’s quiet title
action. As to laches, the evidence before the
court provided reasonable explanation for
McCarty’s delay in filing her action. Further,
although the Parkers claimed McCarty did not
affirmatively repudiate their claim to the disputed property upon learning of the sale of the
disputed property to them, the trial court did
not abuse its discretion in refusing to bar
McCarty’s quiet title action on the equitable
principle of estoppel. Not only did McCarty
Vol. 85 — No. 12 — 4/19/2014
exert dominion and ownership over the disputed property, the court had before it evidence that the Parkers relied on the alleged
comments of the now deceased record title
holder/seller of the disputed property that
McCarty’s use of the disputed property was
permissive, despite a title opinion they had
prepared for them by an attorney who cautioned them to satisfy themselves that no one
claimed an interest in the disputed property
adverse to that of the record title holder.
Accordingly, the Judgment quieting title to
McCarty in the disputed property is affirmed.
AFFIRMED. Opinion from Court of Civil
Appeals, Division IV, by Barnes, C.J.; Wiseman,
P.J., and Goodman, J., concur.
Monday, March 24, 2014
111,538 — In the Matter of H.D.P., an Alleged
Deprived Child, Amanda Baker, Mother,
Appellant, v. State of Oklahoma, Appellee.
Appeal from an Order of the District Court of
Beaver County, Oklahoma, Hon. Ryan D. Reddick, Trial Judge. Appellant (Mother) appeals
from an Order awarding permanent guardianship of her child (HDP) to his paternal greatgrandmother (Great Grandmother). The issues
raised on appeal are as follows: whether the
trial court committed reversible error by applying a preponderance of the evidence standard
to prove the conditions needed to grant permanent guardianship, and thus whether there
was sufficient evidence to grant the guardianship; whether proper and sufficient notice of
the amended petition for guardianship was
given to Mother; and whether the trial court
committed reversible error in failing to require
Great Grandmother to pay for a home assessment. On their face, 10A O.S.2011 §§ 1-4-709(A)
and 1-4-710(D), evidence a Legislative intent
that two different evidentiary standards would
apply to a finding of the conditions stated in §
1-4-709(A) and those required for an order of
permanent guardianship stated in § 1-4-709(D).
The trial court correctly followed the legislative intent expressed in these statutes. Further,
given the totality of the circumstances presented to the court, we conclude the trial court
did not abuse its discretion in finding that the
evidence clearly and convincingly demonstrated the factual basis of parental unfitness
required by § 1-4-710(D). We further conclude,
under the facts of this case, that Mother’s procedural due process rights were not violated
though she had received the amended petition
the day before the hearing. She was fully notified of the petition for permanent guardian-
The Oklahoma Bar Journal
951
ship and had ample time to prepare for the
hearing. The testimony of a new witness identified in the amended petition presented no
information unknown or even detrimental to
Mother. We further conclude that Mother had
sufficient notice of the allegation in the amended petition as to her parental unfitness inasmuch as she stipulated to HDP’s deprived status and was fully aware, through the petition
for permanent guardianship, of Appellee’s
intention to pursue a permanent guardianship
because of its position that Mother failed to
meet the conditions that needed correcting.
Finally, while the Legislature placed on the
prospective guardian the responsibility “to
obtain” a home assessment, 10A O.S.2011 § 1-4710, we do not agree with Mother’s conclusion
that the Legislature was thereby mandating the
prospective guardian “pay for” such an assessment. A home assessment was “obtained” in
this case through the Department of Human
Services (DHS). While DHS clearly does not
have the responsibility to provide such a home
assessment pursuant to § 1-4-710, it did provide that home assessment here. Further, over
a 31-month period, DHS visited Great Grandmother’s home thirty one times. The DHS
home assessment, its recommendations based
on monthly visits for over two and a half years,
and other evidence before the court were sufficient to enable the trial court to assess the
suitability of Great Grandmother’s home for
permanent guardianship. We, therefore, conclude the trial court did not abuse its discretion
in finding that the home assessment attached
to the amended petition satisfied the requirements of § 1-4-710(C). Accordingly, we affirm
the trial court’s Order. AFFIRMED. Opinion
from Court of Civil Appeals, Division IV, by
Barnes, C.J.; Wiseman, P.J., and Goodman, J.,
concur.
Tuesday, March 25, 2014
110,525 — In re the Marriage of: Karen R.
Berg, Petitioner/Appellee, v. David G. Berg,
Respondent/Appellant. Appeal from an Order
of the District Court of Tulsa County, Hon.
Wilma Palmer, Trial Judge. This appeal arises
from post-divorce proceedings primarily
involving issues related to child custody and
visitation. Although the parties stipulated that
joint custody should be terminated, both parties sought sole custody. Respondent/Appellant (Father) appeals the Order denying his
motion to reconsider a previous order that,
among other things, terminated joint custody
and awarded custody to Petitioner/Appellee
952
(Mother). Mother moved to dismiss the appeal
on various grounds. Although we acknowledge the merit of Mother’s request for dismissal, we decline to exercise our discretion to
do so under the circumstances presented. As to
the merits of Father’s appellate arguments, the
burden is upon the party appealing from the
custody and visitation award to show that the
trial court’s decision is erroneous and contrary
to the children’s best interests, and Father has
clearly failed to overcome this burden. Accordingly, we affirm. AFFIRMED. Opinion from
Court of Civil Appeals, Division IV, by Barnes,
C.J.; Wiseman, P.J., and Goodman, J., concur.
Wednesday, March 26, 2014
110,277 — In the Matter of J.B., An Adjudicated Deprived Child, Donna Burrell, Appellant, vs. The State of Oklahoma, Appellee.
Appeal from an order of the District Court of
Oklahoma County, Hon. Gregory J. Ryan, Trial
Judge, denying Mother’s claim of ineffective
assistance of counsel. This matter comes before
the Court after remand to the trial court for an
evidentiary hearing regarding a claim of ineffective assistance of counsel by Mother. Mother
appealed an order of the trial court upon jury
verdict terminating her parental rights to her
minor son on the ground that she failed to correct the conditions that led to his adjudication
as deprived. The issues raised by Mother on
appeal in her brief in chief are (1) whether
Mother’s trial counsel rendered ineffective
assistance, and (2) whether the trial court
abused its discretion when it excluded evidence offered by Mother regarding a grievance
she filed against her caseworker. Mother asked
this Court for leave to supplement the appellate record with affidavits containing information that supports Mother’s claim of ineffective
assistance of counsel. We declined to supplement the appellate record with information
that was not before the trial court. However,
due to the special nature of termination proceedings and a parent’s right to counsel in such
proceedings, we remanded the matter to the
trial court for an evidentiary hearing regarding
the evidence Mother sought to introduce
through her motion to supplement the record
in support of her claim of ineffective assistance
of counsel. After the hearing, the trial court
concluded “as a matter of law that the proposed witnesses’ testimony would not have
meaningfully affected the trial court proceedings or the verdict rendered.” After the entry of
our previous Opinion in this matter, we conclude the record developed on remand does not
The Oklahoma Bar Journal
Vol. 85 — No. 12 — 4/19/2014
support Mother’s claim of ineffective assistance
of counsel or her claim that the trial court abused
its discretion in excluding evidence regarding a
grievance she filed against her caseworker. Finding no error, we affirm the decision of the trial
court terminating Mother’s parental rights.
AFFIRMED. Opinion from the Court of Civil
Appeals, Division IV, by Wiseman, P.J.; Barnes,
C.J., and Goodman, J., concur.
110,819 — Jessica Allen Collins, Petitioner/
Appellant, vs. Philip Ray Collins, Respondent/
Appellee. Appeal from an order of the District
Court of Pottawatomie County, Hon. David
Cawthon, Trial Judge, denying a motion filed
by Father to modify an order of joint custody.
The issue on appeal is whether Mother has
shown that the trial court abused its discretion
or made a decision that is against the clear
weight of the evidence by finding that continuing joint custody of the parties’ minor child
was appropriate and in the dhild’s best interest. We conclude the trial court was not required
to terminate joint custody either because Father
filed a motion to modify or because Mother
opposed continued joint custody. Having
reviewed the testimony at trial, we find no
abuse of discretion when the trial court determined that joint custody should continue, nor
is this decision against the clear weight of the
evidence. AFFIRMED. Opinion from the Court
of Civil Appeals, Division IV, by Wiseman, P.J.;
Barnes, C.J., and Goodman, J., concur.
Monday, March 31, 2014
110,953 — In re the Marriage of: Julie Ann
Parks, now Hix, Petitioner/Appellee, v. Lloyd
Eugene Parks, Respondent/Appellant. Appeal
from the District Court of Seminole County,
Oklahoma, the Hon. Timothy L. Olsen, Trial
Judge. Respondent/Appellant (Father) appeals
from an Order of the trial court that, in part,
awarded an arrearage judgment against him
for back child support payments, and Petitioner/Appellee (Mother) appeals from that
portion of the trial court’s Order that found
Father was not in indirect contempt of court.
The trial court had before it evidence that the
procedures governing modification of child
support required by the parties’ Custody Plan
and incorporated into the divorce decree were
not followed by Father, that Mother obliged
Father’s reductions in support because she
feared she would lose custody of her sons, and
the requirements of 43 O.S.2011 § 118I(D)(5)
were not followed. Further, the Custody Plan
did not provide for automatic modification of
Vol. 85 — No. 12 — 4/19/2014
child support upon a child reaching majority,
but instead clearly stated that current income
levels and other statutory factors were required
for any such agreed modification. Thus, we conclude the trial court’s Order finding Father’s
reduction was a unilateral modification of child
support and its finding that the child support
obligation could not be retroactively modified
were not clearly against the weight of the evidence. As to Father’s equitable defenses of
waiver, estoppel and laches, we conclude the
trial court did not abuse its discretion in not
applying those defenses to its finding that
Father was in arrears in his child support obligations and in awarding Mother an arrearage
judgment. The evidence also demonstrates
Father operated under a mistaken, but erroneous belief that he could modify his child support obligation and that he had no intent to
willfully disobey the court’s orders. Because
there was clear and convincing evidence that
Father did not willfully disobey the court’s
order, the trial court did not abuse its discretion in finding Father not guilty of indirect
contempt. Accordingly, the Order is affirmed.
AFFIRMED. Opinion from Court of Civil
Appeals, Division IV, by Barnes, C.J.; Wiseman,
P.J., and Goodman, J., concur.
Thursday, April 3, 2014
110,842 — (Consolidated with Case No.
111,267) William E. Liebel, Plaintiff/Appellant,
v. Terri Robertson, Defendant/Appellee, and
Alexander L. Bednar, Defendant. Appeal from
Orders of the District Court of Oklahoma
County, Hon. Lisa T. Davis, Trial Judge. In this
appeal, the second appeal in this case, Plaintiff/Appellant (Liebel) contests the amount of
attorney fees awarded in two Orders of the
trial court. Liebel argues the trial court erred by
awarding him a substantially lower amount of
attorney fees than he requested, and by failing
to set forth with specificity the facts and calculation supporting the award. It may be that the
attorney fees awarded by the trial court are
appropriate and reasonable; however, the trial
court was required to set forth with specificity
the facts and computation to support its award
pursuant to State ex rel. Burk v. City of Oklahoma
City, 1979 OK 115, 598 P.2d 659. We reverse the
attorney fee awards and remand this case to the
trial court with directions to set forth the statutory basis (or bases) for each award, together
with the supporting facts and computation.
REVERSED AND REMANDED WITH DIRECTIONS. Opinion from Court of Civil Appeals,
The Oklahoma Bar Journal
953
Division IV, by Barnes, C.J.; Wiseman, P.J., and
Goodman, J., concur.
ORDERS DENYING REHEARING
(Division No. 1)
Monday, March 10, 2014
111,970 — Walter R. Lacey, Jr., Plaintiff/
Appellant, vs. Homes of OKC, Inc., Defendant/Appellee, Genetta E. Lacey, a single person, Atlas Financial Services, Inc., and B&F
Corporation, Third-Party Defendants. Plaintiff/Appellant’s Objection to Order from the
Court, Cover Sheet for Amendment to Record,
and Correction Statement filed February 28,
2014 will be treated as a Petition for Rehearing
and is DENIED.
Monday, March 31, 2014
111,576 — (Companion with 110,427 and
111,388) Riverview Park Estates, LLC, Plaintiff,
vs. Imperial Investments, LLC, Defendant/
Appellant, Riverside Lots, LLC and Paloma
Capital, LLC, Additional Third-Party Defendants/Appellees, vs. Imperial Investments,
LLC and Stephen C. Pereff, Defendants on
Cross-Claim of Additional Third-Party Defendants/Appellants, Steven R. Hickman and
Frasier, Frasier & Hickman, LLP, Third-Party
Defendants on Third-Party Petition of Additional Third-Party Defendants. Defendant/
Appellant’s Petition for Rehearing filed February 24, 2014 is DENIED.
(Division No. 3)
Wednesday, February 19, 2014
110,998 — Carmen LaRue Myers, an Individual, Plaintiff/Appellant, vs. Scott Edward
Winberg; Rex Alan Winberg; Douglas Dale and
The Law Offices of Wright Dale & Jett, Defendants/Appellees, and Scott Edward Winberg
and Rex Alan Winberg, Third-Party Plaintiffs,
vs. Cheyrle Winberg Mowrey, Third-Party
Defendant. Appellant’s Petition for Rehearing
and Brief in Support, filed Februry 13, 2014, is
DENIED.
Thursday, February 20, 2014
110,555 — Juan Caride and Toni Caride, individually, and as parents and next friends of Tiffany Caride and Gina Caride, minor children;
Desirae Caride, an individual, J.C. Quarter Horses, Inc., and Im Kiddin L.L.C., Plaintiffs/Appellants, vs. Chesapeake Operating, Inc., Perry L.
Larson Operations, Co., Inc., Defendants/Appellees, and C.E. Harmon Oil, Inc., and Does 1-20,
954
Defendants. Appellants’ Petition for Rehearing
and Brief in Support, filed January 2, 2014, is
DENIED.
Tuesday, March 4, 2014
111,283 — City of Tulsa and Own Risk
#10435, Insurance Carrier, Petitioners, vs. Brian
S. O’Keefe and The Workers’ Compensation
Court, Respondents. Respondents’ Petition for
Rehearing filed February 24, 2014 is DENIED.
Tuesday, March 18, 2014
110,956 — The State of Oklahoma ex rel.,
Department of Human Services, Petitioner/
Appellant, and Jennifer L. Minor, Petitioner, vs.
Steven Alsip, Respondent/Appellee. Appellant’s Petition for Rehearing, filed March 6,
2014, is DENIED.
110,381 — Michael Binder, Plaintiff/Appellee, vs. Joseph W. Hidy, as special administrator for the Estate of George A. Warde, and
trustee of the George A. Warde Revocable Inter
Vivos Trust, Appellant, succeeding George
Warde, Defendant, Scot Spencer and Ascend
Aviation Marketing and Sales, LLC, Defendants. Appellant’s Petition for Rehearing and
Brief in Support, filed February 21, 2014, is
DENIED.
Monday, March 31, 2014
111,171 — Karen Wade, Plaintiff/Appellant,
vs. Brent Carter, Oklahoma Adjustment Services, Inc., Defendants/Appellees. Appellees’
Petition for Rehearing and Brief in Support,
filed March 18, 2014, is DENIED.
(Division No. 4)
Thursday, February 20, 2014
111,617 — Marcella Marie Rivers, Petitioner,
vs. Johnson Controls, Inc., Indemnity Insurance Co. of North America, and The Workers’
Compensation Court, Respondents. Petitioner’s Petition for Rehearing is hereby DENIED.
Friday, March 14, 2014
111,260 — Robert J. Herman, Plaintiff/Appellant, v. KPI Ultrasound, L.L.C., Defendant/
Appellee. Appellant’s Petition for Rehearing is
hereby DENIED.
111,373 — Brittany Energy, LLC, Plaintiff/
Appellant, v. Superior Pipeline Company, LLC,
Defendant/Appellee. Appellant’s Petition for
Rehearing is hereby DENIED.
The Oklahoma Bar Journal
Vol. 85 — No. 12 — 4/19/2014
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LUXURY OFFICE SPACE – One office available for
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The Oklahoma Bar Journal
955
OFFICE SPACE
POSITIONS AVAILABLE
EXECUTIVE OFFICE SUITES. Two blocks from District
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STAFF ATTORNEY - The Office of Legal Counsel to the
OSU/A&M Board of Regents has an immediate opening for a Staff Attorney. The position will report to and
receive assignments from the General Counsel, will
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resources, regulatory compliance, real estate transactions, contracts, bond financing and intellectual property licensing. The precise duties assigned to the position may vary from the above, based upon the
experience and aptitude of the successful applicant.
The position requires a Bachelor’s degree and J.D./
LL.B. degree from an accredited law school, membership in good standing in the Oklahoma Bar, and zero
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Salary commensurate with experience. To receive full
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OFFICE SHARE
OK LICENSED INSURANCE AGENT/ATTORNEY is
seeking another attorney practicing in elder law/probate/wills to share office space together for mutually
beneficial working relationship. If you have space
available or looking for a place to rent and office share
please email [email protected].
POSITIONS AVAILABLE
IN-HOUSE LEGAL SECRETARY. Love’s Travel Stops
& Country Stores, Inc. seeks a full-time legal secretary
for its OKC Corporate Legal Department. Experience
as administrative assistant/legal secretary in law firm
or corporate legal department required. Purpose of
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LITIGATION PARALEGAL. Helmerich & Payne, Inc.,
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AIG Staff Counsel has an opportunity for a WORKER’S
COMPENSATION TRIAL ATTORNEY in our new
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Must have Juris Doctorate degree. Oklahoma Bar
Membership required. Familiarity with various Boards,
their procedures and their personnel. To apply, visit
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956
DEPOSIT COMPLIANCE MANAGER
The Deposit Compliance Manager serves as the liaison between operational business units and the
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If you are interested in this opportunity, please visit
our website to complete an online application:
www.midfirst.jobs JOB ID 6879
Equal Opportunity Employer- M/F/Disability/Vets
The Oklahoma Bar Journal
Vol. 85 — No. 12 — 4/19/2014
POSITIONS AVAILABLE
POSITIONS AVAILABLE
DOWNTOWN OKC LAW FIRM has an opening for a
full-time litigation Paralegal. A four year college degree
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IN-HOUSE LEGAL FILE CLERK. Love’s Travel Stops
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COMPLIANCE MANAGER – LENDING
The Lending Compliance Manager reports to the Senior Compliance Manager and is responsible for organization, planning and administration of the lending compliance program. This includes conducting
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www.midfirst.jobs JOB ID 6806
Equal Opportunity Employer- M/F/Disability/Vets
AIG Staff Counsel has an opportunity for a SUPERVISING SENIOR TRIAL ATTORNEY in our new Oklahoma
City area office. The office will handle both casualty and
worker’s compensation litigation in Oklahoma. Key
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ensure the office budget is balanced; overseeing and
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must have the ability and skills to grow the firm
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clients and customers. Must have a Juris Doctorate
degree from an accredited law school and be admitted
to practice law in the State of Oklahoma. Supervisory
experience required. To apply, visit www.aig.com/
careers. Job ID 98204.
ASSISTANT D.A. NEEDED for solo office in Pushmataha County to perform legal services related to County government operations; prosecute any/all criminal
offenses; assist in any/all juvenile cases; other duties
as assigned. Duties vary based on experience. Requires
J.D. from accredited law school, legal experience in
criminal and civil law preferred. Prior courtroom experience preferred. Admitted to the Oklahoma Bar and in
good standing. Salary commensurate with experience.
Submit résumé with supporting documentation to
District Attorney Mark Matloff, 108 N Central, Suite 1;
Idabel, OK 74728; 580-286-7611 or email résumé to
[email protected].
WANTED, A PART TIME LEGAL ASSISTANT/SECRETARY. Approximately 25-30 hours per week. Experience is required. Pay is commensurate with experience.
Please email résumé to [email protected] or
fax to 405-340-1973.
MID SIZED OKC A RATED FIRM is seeking an experienced 4+ years Estate Planning attorney. Submit résumé to “Box O,” Oklahoma Bar Association, P.O. Box
53036, Oklahoma City, OK 73152.
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The Oklahoma Bar Journal
957
POSITIONS AVAILABLE
CLASSIFIED INFORMATION
NORMAN LAW FIRM is seeking sharp, motivated
attorneys for fast-paced transactional work. Members
of our growing firm enjoy a team atmosphere and an
energetic environment. Attorneys will be part of a creative process in solving tax cases, handle an assigned
caseload, and will be assisted by an experienced support staff. Our firm offers health insurance benefits,
paid vacation, paid personal days, and a 401K matching program. Applicants need to be admitted to practice law in Oklahoma. Submit cover letter and résumé
to [email protected].
CLASSIFIED RATES: $1 per word with $35 minimum per insertion. Additional $15 for blind box. Blind box word count
must include “Box ___, Oklahoma Bar Association, P.O. Box
53036, Oklahoma City, OK 73152.” Display classified ads with
bold headline and border are $50 per inch. See www.okbar.org
for issue dates and display rates.
DEADLINE: Theme issues 5 p.m. Monday before publication;
Court issues 11 a.m. Tuesday before publication. All ads must
be prepaid.
SEND AD (email preferred) stating number of times to be published to:
[email protected], or
Emily Buchanan, Oklahoma Bar Association, P.O. Box 53036,
Oklahoma City, OK 73152.
Publication and contents of any advertisement is not to be
deemed an endorsement of the views expressed therein, nor
shall the publication of any advertisement be considered an endorsement of the procedure or service involved. All placement
notices must be clearly non-discriminatory.
DO NOT STAPLE BLIND BOX APPLICATIONS
The South Oklahoma City
Lawyer’s Association
is seeking new members!
To get your
free listing on
the OBA’s lawyer
listing service!
Just go to www.okbar.org and
log into your myokbar account.
Then click on the
“Find a Lawyer” Link.
958
One hour of CLE provided each
meeting plus one hour of ethics per year
Cost: $135 for 9 meetings per year
Cost includes lunch each meeting
Guests: $15 each must bring payment
For membership information contact
Arlene Randall, Treasurer by email:
[email protected]
Next meeting: Thursday, May 15, 2014,
from 11:30 a.m. to 1:00 p.m.
Speaker: Julie Bays,
Attorney General’s Office
Topic: Duties of the Public Protection
Unit of the Attorney General’s Office
Place: Willow Creek Country Club
6401 S. Country Club Drive
The Oklahoma Bar Journal
MUST RSVP by Monday, May 12 to:
Brittany J. Byers, Secretary by email:
[email protected]
Vol. 85 — No. 12 — 4/19/2014
Vol. 85 — No. 12 — 4/19/2014
The Oklahoma Bar Journal
959