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Volume 87 u No. 18 u July 16, 2016

1282 The Oklahoma Bar Journal Vol. 87 — No. 18 — 7/16/2016

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Vol. 87 — No. 18 — 7/16/2016 The Oklahoma Bar Journal 1283

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contentsJuly 16, 2016 • Vol. 87 • No. 18

OklahOma Bar assOciatiOn

page

table of

1286 Index to Court Opinions

1288 Opinions of Supreme Court

1337 Calendar of Events

1338 In Memoriam

1340 Opinions of Court of Criminal Appeals

1347 Second Session of the 55th Oklahoma Legislature Final Legislative Monitoring Committee Report

1351 Opinions of Court of Civil Appeals

1376 Disposition of Cases Other Than by Publication


Index to Opinions of Supreme Court

2016 OK 28 DONALD DEWAYNE MOORE, Plaintiff/Appellant, v. WARR ACRES NURSING CENTER, LLC, Defendant/Appellee. No. 113,098 .................................................. 1288

2016 OK 60 IN RE: AMENDMENT OF RULE 5 OF THE RULES GOVERNING ADMIS-SION TO THE PRACTICE OF LAW, 5 O.S. Supp. 2015, ch. 1, app. 5 ) SCBD 6349 ............... 1288

2016 OK 69 WILLIAM P. NELSON, and JON NELSON, individually and as Co-Personal Representatives and/or Co-Executors of the Estate of Ethel A. Nelson, and as Co-Trustees of the Ethel A. Nelson Revocable Trust and as heirs and next of kin of Ethel A. Nelson, Plaintiffs/Appellants, v. ENID MEDICAL ASSOCIATES, INC., and DAVID SHEPHERD, Defendants/Appellees, and UNIVERSAL HEALTH SERVICES, INC., (UHS), individually and d/b/a St. Mary’s Regional Medical Center; UHS OF OKLAHOMA, INC., individually and d/b/a St. Mary’s Regional Medical Center, ST. MARY’S REGIONAL MEDICAL CENTER, HENRY D. VAUGHAN, a.k.a H. DEAN VAUGHAN a.k.a. HENRY D. VAUGHN a.k.a H. DEAN VAUGHN, RONALD W. SHRECK, and ENID EMERGENCY PHYSICIANS, L.L.P., Defendants. No. 110,665 ............ 1289

2016 OK 70 IN RE: FEE SCHEDULE FOR THE STATE BOARD OF EXAMINERS OF CERTIFIED COURTROOM INTERPRETERS SCAD-2016-48 .................................................... 1290

2016 OK 71 JACKIE WATKINS, as Guardian Ad Litem for JANE DOE, Plaintiff/Appel-lant, v. CENTRAL STATE GRIFFIN MEMORIAL HOSPITAL; OKLAHOMA DEPART-MENT OF MENTAL HEALTH AND SUBSTANCE ABUSE SERVICES; and DR. ASMA MUDASSIR, in her official capacity as a resident physician and individually, Defendants/Appellees. No. 113,427 ............................................................................................... 1290

2016 OK 72 STATE OF OKLAHOMA, ex rel. OKLAHOMA BAR ASSOCIATION, Com-plainant, v. GLENN MARTIN MIRANDO, Respondent. SCBD No. 6329 ............................... 1297

2016 OK 73 ANDREA ROSA PIZANO, Plaintiff/Appellee, v. LACEY & ASSOCIATES, LLC, Defendant/Appellant, and WW GROUP, LLC, 5W GROUP, LLC, MARK WIL-LIAMS, JONNY WILLIAMS, and JOHN DOE, Defendants, v. EVEREST HOMES, LLC, Third-Party Defendant. No. 112,538 ..................................................................................... 1305

2016 OK 74 Misty Darlene Tiger, individually and as Administrator of the Estate of Jason Lee Tiger, deceased; J.L.T., a minor child; and B.L.T., a minor child, by and through their natural mother and next friend, Misty Darlene Tiger, Appellants, v. Verdigris Valley Electric Cooperative, an Oklahoma not for profit cooperative, Appellee, and Integrated Service Company LLC, d/b/a INSERV, an Oklahoma limited liability company, Defendant. No. 112,777 .................................................................................................. 1309

2016 OK 75 STATE OF OKLAHOMA, ex rel. OKLAHOMA BAR ASSOCIATION, Com-plainant, v. DAVID BRUCE AUER, Respondent. SCBD No. 6213 ............................................ 1314

2016 OK 76 IN THE MATTER OF THE STRIKING OF NAMES OF MEMBERS OF THE OKLAHOMA BAR ASSOCIATION FOR NONPAYMENT OF 2015 DUES SCBD No. 6272 ...................................................................................................................................................... 1319

2016 OK 77 IN THE MATTER OF THE STRIKING OF NAMES OF MEMBERS OF THE OKLAHOMA BAR ASSOCIATION FOR NONCOMPLIANCE WITH MANDATORY CONTINUING LEGAL EDUCATION REQUIREMENTS FOR THE YEAR 2014 SCBD No. 6273 .............................................................................................................................................. 1320


2016 OK 78 ANNETTE LEGARDE-BOBER, Petitioner, v. OKLAHOMA STATE UNIVER-SITY, SELF INSURED (OWN RISK #14526) and THE WORKERS’ COMPENSATION COMMISSION, Respondents. Case No. 114,038 .......................................................................... 1321

2016 OK 79 Wayne Robert Leritz, Appellant, v. Farmers Insurance Company, Inc., Appel-lee, and Larry Allen Yates, Defendant. No. 110,013 ..................................................................... 1325

2016 OK 80 STATE OF OKLAHOMA ex rel. OKLAHOMA BAR ASSOCIATION, Com-plainant, v. SHANITA DANIELLE GAINES, Respondent. O.B.A.D. No 2095. S.C.B.D. No. 6389 .............................................................................................................................................. 1327

2016 OK 81 STATE OF OKLAHOMA ex rel. OKLAHOMA BAR ASSOCIATION, Com-plainant, v. KATHRYN KIMBERLEE DICKSON, Respondent. SCBD 6375 ............................ 1332

2016 OK 82 In re Claim of: A. Todd Holliman, Petitioner, v. Twister Drilling Co., Respon-dent, and Compsource Oklahoma, Insurance Carrier. Case No. 113,305 ................................. 1334

Index to Opinions of Court of Criminal Appeals

2016 OK CR 14 BRIAN CHRISTOPHER CRIPPS, Appellant, vs. THE STATE OF OKLA-HOMA, Appellee. No. F-2015-209 .................................................................................................. 1340

Index to Opinions of Court of Civil Appeals

2016 OK CIV APP 37 CONCORDE RESOURCES CORPORATION, Plaintiff/Appellee, vs. WILLIAMS PRODUCTION MID-CONTINENT COMPANY, MAHALO ENER-GY (USA), INC., now REDBUD E & P, INC., Defendants/Appellants, KEPCO ENERGY, INC., PYLE, CAREY AND COLLIE, INC., SMITH, SMITH AND SMITH, a general part-nership, and NANCY JACKSON DAWSON, Defendants/Appellees. Case No. 112,340 ............................................................................................................................... 1351

2016 OK CIV APP 38 TINKER FEDERAL CREDIT UNION, Plaintiff/Appellee, vs. AAAA WRECKER SERVICE, INC., Defendant/Appellant, and Martin Remmers and Ashley L. Hurt, Defendants. Case No. 113,200 .......................................................................................... 1358

2016 OK CIV APP 39 Danny and Kim Avens, individually and on behalf of all others similarly situated, Plaintiffs, vs. COTTON ELECTRIC COOPERATIVE, INC., an Oklahoma corporation, Defendant/Appellant, and BROTHERHOOD MUTUAL INSURANCE COMPANY; and AMERICAN FARMERS & RANCHERS MUTUAL INSURANCE COMPANY, f/k/a OKLAHOMA FARMERS UNION MUTUAL INSURANCE COMPANY, Appellees. Case No. 113,439 ............................................................ 1366

2016 OK CIV APP 40 GEORGETTA ANDERSON, Administrator of the Estate of Steve Anderson, Plaintiff/Appellant, vs. DANIEL MORGAN, M.D., Defendant/Appellee. Case No. 113,619 ................................................................................................................................ 1368

2016 OK CIV APP 41 JAMES RAY BLAKLEY, Plaintiff/Appellant, vs. M&N DEALER-SHIPS, L.L.C., d/b/a EDMOND HYUNDAI; SEAN A. MILLER; and BRYCE RHOADS, Defendants/Appellees. Case No.: 114,060 ................................................................. 1370


2016 OK 28

DONALD DEWAYNE MOORE, Plaintiff/Appellant, v. WARR ACRES NURSING

CENTER, LLC, Defendant/Appellee.

No. 113,098. As Corrected: June 27, 2016 and June 29, 2016

ORDER

This Court’s March 9, 2016 opinion in the above-referenced matter is hereby corrected to change “director of nursing” to “assistant director of nursing” appearing in ¶3. In all other respects the opinion remains unchanged.

Appellee’s petition for rehearing of this Court’s March 9, 2016 Opinion is denied.

Appellant’s motion for attorney fees is denied.

Appellant’s motion to tax costs is granted in part, and remanded in part. The Clerk of the Supreme Court is directed to tax costs in favor of Appellant, and against Appellee, in the amount of $200.00. 12 O.S. § 978, Rule 1.14 of the Oklahoma Supreme Court Rules. On remand after mandate issues, the trial judge is authorized to determine, in an adversarial hearing, with notice, the reasonable cost of copying and binding the record, and which transcript fees should be taxed as costs. Carroll v. Axelson, 1999 OK 13, 976 P.2d 1046. No fee paid to the district court clerk is taxable in the appellate courts. Rule 1.14 (A)(3) of the Okla-homa Supreme Court Rules.

DONE BY ORDER OF THE SUPREME COURT IN CONFERENCE THIS 27th DAY OF JUNE, 2016.

/s/ Douglas L. CombsVICE CHIEF JUSTICE

CONCUR: Reif CJ, Combs VCJ, Kauger, Edmondson, Colbert, Gurich and Watt, JJ.

DISSENT: Winchester, Taylor, JJ.

2016 OK 60

IN RE: AMENDMENT Of RULE 5 Of THE RULES GOVERNING ADMISSION TO

THE PRACTICE Of LAW, 5 O.S. Supp. 2015, ch. 1, app. 5 )

SCBD 6349. June 1, 2016

ORDER

Rule 5 of The Rules Governing Admission to the Practice of Law in the State of Oklahoma, as currently amended by this Court’s Order of May 23, 2016, 2016 OK 57, and attached hereto, is hereby amended effective immediately.

DONE BY ORDER OF THE SUPREME COURT IN CONFERENCE the 31st day of May, 2016.

/s/ John R. ReifCHIEF JUSTICE

ALL JUSTICES CONCUR

Rules Governing Admission to the Practice of Law in the State of Oklahoma

Chapter 1, App. 5

Rule 5. Examination.

All applicants for admission by examination who:

A) shall have attained a grade of at least 75% in the subject of Oklahoma Rules of Profes-sional Conduct; and

B) shall have attained an average grade of at least 75% on the examination given by the Board of Bar Examiners covering combinations of the subjects hereinafter specified; shall have attained a combined grade equivalent to at least 75% on the examination given by the Board of Bar Examiners which shall include: 1) the Multistate Bar Examination (MBE); and 2) essay questions which cover combinations of the subjects hereinafter specified:

The examination shall cover combinations of the following subjects:

1. Oklahoma Rules of Professional Conduct

2. Commercial Law, which may include:

Supreme Court OpinionsManner 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)


(a) Contracts(b) Uniform Commercial Code(c) Consumer Law(d) Creditor’s rights, including bankruptcy

3. Property

4. Procedural Law, which may include:(a) Pleadings(b) Practice(c) Evidence(d) Remedies (damages, restitution and equity)

5. Criminal Law

6. Business Associations, which may include:(a) Agency(b) Partnerships (including joint ventures)(c) Corporations(d) Limited Liability Companies

7. Constitutional and Administrative Law

8. Torts

9. Intestate Succession, wills, trusts, estate plan-ning, including federal estate and gift taxation

10. Conflicts of law

11. Family law

C) shall have attained a satisfactory score on The Multistate Bar Examination (MBE), when considered in combination with the score obtained in Subsection B; and

D) and C) are otherwise qualified under these rules

shall be recommended by the Board of Bar Examiners for admission to the practice of law in this state.

Any applicant who is otherwise qualified to be recommended for admission to the Bar except by reason of failure to pass satisfactorily the section of the Oklahoma Bar Examination concerning the Oklahoma Rules of Profession-al Conduct shall be eligible for re-examination on the subject Oklahoma Rules of Professional Conduct. Such re-examination shall be con-ducted by the Board at a time and place to be fixed by the Board and may be written or oral or both. If, upon such reexamination, the appli-cant receives a satisfactory grade in the subject Oklahoma Rules of Professional Conduct and is found by the Board to have otherwise quali-fied to be recommended for admission to the Bar, such applicant shall thereupon be so recom-mended. Any applicant who fails to receive a satisfactory grade upon such reexamination

shall be required to reapply for permission to take a further examination concerning the Okla-homa Rules of Professional Conduct, which may be given at the discretion of the Board.

There shall be held two bar examinations each year, at dates, times, places and duration to be prescribed by the Board of Bar Examiners.

2016 OK 69

WILLIAM P. NELSON, and JON NELSON, individually and as Co-Personal

Representatives and/or Co-Executors of the Estate of Ethel A. Nelson, and as Co-Trustees of the Ethel A. Nelson Revocable Trust and as heirs and next of kin of Ethel A. Nelson, Plaintiffs/Appellants, v. ENID MEDICAL

ASSOCIATES, INC., and DAVID SHEPHERD, Defendants/Appellees, and UNIVERSAL HEALTH SERVICES, INC., (UHS), individually and d/b/a St. Mary’s

Regional Medical Center; UHS Of OKLAHOMA, INC., individually and d/b/a

St. Mary’s Regional Medical Center, ST. MARY’S REGIONAL MEDICAL CENTER,

HENRY D. VAUGHAN, a.k.a H. DEAN VAUGHAN a.k.a. HENRY D. VAUGHN a.k.a

H. DEAN VAUGHN, RONALD W. SHRECK, and ENID EMERGENCY PHYSICIANS, L.L.P., Defendants.

No. 110,665. June 27, 2016

¶0 CORRECTION ORDER

¶1 The Court’s Opinion herein filed on June 14, 2016 shall be corrected in the following one instance.

Footnote number forty-nine (49) of the opin-ion shall be corrected to state:

After General Electric v. Joiner, 522 U.S. 136, 146 (1997), it was clear a court need not accept testimony with “too great an ana-lytical gap between the data and the opin-ion proffered.” Christian v. Gray, 2003 OK 10, ¶ 36, 65 P.3d 591, 607.

¶2 The Opinion of the Court shall otherwise remain as filed June 14, 2016.

¶3 DONE BY ORDER OF THE SUPREME COURT THIS 27th DAY OF JUNE, 2016.

J.E. EdmondsonACTING CHIEF JUSTICE


2016 OK 70

IN RE: fEE SCHEDULE fOR THE STATE BOARD Of EXAMINERS Of CERTIfIED

COURTROOM INTERPRETERS

SCAD-2016-48. June 20, 2016

ORDER

PURSUANT TO the provisions of 20 O.S. § 1707, the Court hereby approves and autho-rizes the attached Fee Schedule for the State Board of Examiners of Certified Courtroom Interpreters, effective immediately.

DONE BY ORDER OF THE SUPREME COURT IN CONFERENCE THIS 20th day of JUNE, 2016.

/s/ John F. ReifCHIEF JUSTICE

ALL JUSTICES CONCUR.

fee Schedule of the Oklahoma State Board of Examiners of Certified Courtroom

Interpreters

fees for Interpreter Credentialing

Application for Provisional Status $100.00

Application for Certification byReciprocity $100.00

Application to Become a RegisteredCourtroom Interpreter– Full Program(Fee includes enrollment in oneTwo-Day Orientation Training, oneWritten Examination and one WrittenTranslation Basic ProficiencyAssessment) $200.00

Application to Become a Registered Courtroom Interpreter – Application Only $100.00

Background Check $15.00 (or actual cost, whichever is greater)

Two-Day Orientation Training $100.00

Court Interpreter WrittenExamination $ 50.00

Basic Proficiency Assessment –Written Translation Test $ 50.00

Basic Proficiency Assessment –Oral Proficiency Interview $ 75.00

Oral Examination $250.00

fees for Certificate Renewal and Continuing Education

Annual Certificate Renewal Fee* Annual certificate renewal shall become

effective on January 1, 2016 $ 30.00

Delinquent Payment Fee* Assessed for failure to renew certificate on or before February 15 $100.00

Continuing Education Penalty Fee* Assessed for failure to obtain CE hours

on or before December 31 of the year in which they are required

* Annual CE requirements shall become effective on January 1, 2016 $100.00

Continuing Education Suspension Fee $100.00

Reinstatement after Administrative Revocation or Inactive Status $100.00

Continuing Education Courses; Training Classes; Workshops – a reasonable Registration Fee may be charged for education and training events sponsored by the Board or the Administrative Office of the Courts

2016 OK 71

JACKIE WATKINS, as Guardian Ad Litem for JANE DOE, Plaintiff/Appellant, v.

CENTRAL STATE GRIffIN MEMORIAL HOSPITAL; OKLAHOMA DEPARTMENT Of MENTAL HEALTH AND SUBSTANCE

ABUSE SERVICES; and DR. ASMA MUDASSIR, in her official capacity as a

resident physician and individually, Defendants/Appellees.

No. 113,427. June 21, 2016

CERTIORARI TO THE COURT Of CIVIL APPEALS, DIVISION II

¶0 Plaintiff sought damages under multi-ple theories on behalf of her nineteen year old pregnant daughter arising from an allegedly unauthorized pelvic exam con-ducted by a male nurse. Plaintiff asserts that the applicable limitations period is extended because of defendants’ alleged attempt to cover up the nurse’s wrongful actions. We hold that the question of when a plaintiff possesses sufficient information to trigger the running of the statute of limi-


tations is one of fact. We find the relevant facts to this issue are disputed and we vacate the Court of Civil Appeals’ opinion affirming the trial court’s grant of summa-ry judgment in favor of defendants.

CERTIORARI PREVIOUSLY GRANTED; COURT Of CIVIL APPEALS’ OPINION

VACATED; DISTRICT COURT’S JUDGMENT REVERSED; AND MATTER

REMANDED fOR fURTHER PROCEEDINGS

Ryan M. Oldfield, Oklahoma City, Oklahoma, for Appellants

Bartlett H. Ramsey, Oklahoma City, Oklahoma, for Appellants

Wilson D. McGarry, Office of the Attorney General, for Appellees

Richard Neal Mann, Office of the Attorney General, for Appellees

WATT, J.:

¶1 We granted certiorari in this matter to address two issues: (1) is the limitations period in the Governmental Tort Claims Act, 51 O.S. §§ 151 - 258, tolled when state employees alleg-edly withhold facts critical to the analysis of potential negligence claims; and (2) does the record contain disputed facts material to this analysis? We answer both questions in the affir-mative. We hold that the resolution of these issues contains questions for the trier of fact, making summary adjudication improper.

PROCEDURAL HISTORY

¶2 The trial court plaintiff, Jackie Watkins (“Watkins”), in her capacity as guardian of her adult daughter, Jane Doe, seeks damages against defendants, Central State Griffin Me-morial Hospital (“Griffin”), Oklahoma Depart-ment of Mental Health and Substance Abuse Services (“ODMHSAS”) and Dr. Asma Mudas-sir (“Mudassir”),1 in her official capacity as a resident physician and individually. Plaintiff alleges (1) negligence, (2) negligent hiring, retention, and supervision, (3) joint enterprise, (4) agency, (5) respondeat superior, and (6) fraud against Defendants.

¶3 Griffin and ODMHSAS are state institu-tions and claims against these defendants are subject to the Oklahoma Governmental Tort Claims Act (“GTCA”), 51 O.S. 2011, §§ 151- 258. Griffin is a hospital dedicated to clients in need of inpatient psychiatric treatment. Mudassir

was a resident physician at Griffin during the relevant time period.

¶4 Watkins filed her Petition, February 1, 2013, more than one year after Ms. Doe’s inpa-tient hospital admission to Griffin.2 Defendants filed a Motion for Summary Judgment urging her claims were barred by the one year limita-tion set forth in the GTCA. Defendants urge Plaintiff’s claims are matters which were known or reasonably should have been discov-ered at the time of Ms. Doe’s hospital admis-sion. The trial court granted judgment in favor of Defendants. The Court of Civil Appeals (“COCA”) affirmed, finding the undisputed material facts establish that Plaintiff knew, or in the exercise of reasonable diligence should have known, enough facts as of the time of the hospital admission to bring her claims.

¶5 Watkins alleges that misleading and/or deceptive actions by Griffin employees pre-vented her from discovering information essential to her claims. She further reasons the one year limitation period set out in the GTCA should not begin to run until such time as a diligent person could be reasonably expected to have discovered the relevant information. Watkins also asserts that the doctrine of estop-pel should apply to prevent the Defendants from raising the time limitations bar of the GTCA as a defense to her claims. Under these circumstances, Watkins urges she could not have learned information crucial to her claim until she was appointed guardian of Ms. Doe.

¶6 The record contains evidence of two dif-ferent levels of potential deception by Defen-dants. There is evidence that Griffin employees provided false information to civil and crimi-nal investigators and that they may have acted in concert with regard to the deception. There is also evidence that Griffin then subsequently misled Watkins and Ms. Doe regarding the investigation results. In addition, pivotal conclu-sions reached by criminal investigators were derived from false information provided by Defendants. In light of this alleged deception, it is a question for the trier of fact to determine whether Watkins or Ms. Doe acted reasonably in not pursuing a civil action under the GTCA within one year of the hospital admission. We have long recognized that the determination of when a plaintiff possesses sufficient informa-tion to initiate the running of the statute of limitations is a question of fact. Wing v. Lorton, 2011 OK 42, ¶ 18, 261 P.3d 1122, 1127.


fACTUAL BACKGROUND

¶7 Ms. Doe was admitted to Griffin at 4:00 a.m. on March 19, 2011, for treatment of sui-cidal thoughts. At the time of admission, she was nineteen years old, five months pregnant and lived at home with her mother, Watkins. Later that day, Ms. Doe told Nicholas Schiavo, R.N., (“Schiavo”), she was having abdominal pain and was concerned she was having con-tractions. Schiavo took Ms. Doe into an exam room with no other witness present to check her for bleeding. He remained present in the room and watched while Ms. Doe removed her clothing from the waist down. Schiavo did not provide Ms. Doe with a sheet, drape or a gown. He then put on a glove, and conducted a pelvic exam while she was undressed on the exam table. No female staff was present. They were alone in the exam room for nine minutes. Some time later, Schiavo asked Ms. Doe if she was still involved in a relationship with the father or interested in dating other people. He also offered to perform another pelvic exam when she felt better.

¶8 Ms. Doe filed a complaint with Griffin prior to her March 21, 2011, discharge, claiming she felt violated by Schiavo conducting a “pel-vic exam with no doctor or female present then joked and asked if [Ms. Doe] wasn’t with the father was [she] looking to see other people and touched [her] shoulder”.3 Ms. Doe ex-pressed she felt very violated by these actions. It is undisputed that Watkins knew about the specific concerns raised in the complaint sub-mitted to Griffin. Watkins followed up with Griffin about the status of this complaint. She was told a formal investigation of the incident was being conducted.

¶9 An investigation by the Office of Inspec-tor General (“OIG”) of ODMHSAS, included reviewing the medical chart, relevant Griffin policies and procedures, and interviews of Schiavo, Mudassir and nurse managers. The medical chart does not contain a written order for a pelvic exam. Schiavo told the OIG inves-tigator that he did not have a physician order for a pelvic exam and he contacted Mudassir after he did his assessment. A nurse coordina-tor employed with ODMHSAS for twenty years said that Griffin nurses do not conduct pelvic exams. Pregnant consumers needing this level of care are transported to a medical hospital for such an exam.4 Mudassir told the OIG investigator that prior to the exam, Schia-vo contacted her by telephone to inform her

that Ms. Doe was having pains and possible contractions. Mudassir says she gave Schiavo a verbal order to conduct a pelvic exam. Mudas-sir says she did not document her order on Ms. Doe’s chart because she was too busy. The investigator probed Mudassir and “[w]hen confronted with information that Mr. Schiavo told the investigator that he did not obtain a verbal order prior to the exam, Dr. Mudassir responded that he did contact her prior and obtained a verbal order.”5

¶10 OIG concluded that: (1) the evidence col-lected “supports the allegation that RN Nicho-las Schiavo violated Oklahoma Administrative Code (OAC) 450:15-3-8 (Right to Freedom from Abuse, Neglect, or Mistreatment) by conduct-ing a pelvic exam on consumer [Ms. Doe]”;6 and (2) Schiavo placed Ms. Doe in an unrea-sonable risk of harm by conducting a vaginal exam in private, having no witnesses and ask-ing questions that made her feel uncomfort-able. Following the OIG investigation, Schiavo was terminated from Griffin.

¶11 Griffin representatives told Watkins and Ms. Doe that Schiavo performed the pelvic exam pursuant to physician orders and there was no wrongdoing by Schiavo.7 Griffin did not provide a copy of the report to Watkins or Ms. Doe. Griffin did not tell Watkins that Schiavo’s actions violated Griffin policies or that his actions resulted in termination of his employ-ment. Watkins first learned about the lack of a written physician order, lack of physician notes and Schiavo’s termination after being appoint-ed as guardian of Ms. Doe.

¶12 During Schiavo’s employment at Griffin, his nursing practice was restricted by the Okla-homa Board of Nursing (“OBN”) by the terms of a “Supervised Practice Agreement” required by his participation in the OBN Peer Assistance Program.8 Under this agreement, it was manda-tory for him to be supervised by another regis-tered nurse working on the same unit for his entire shift.9 Griffin was aware of Schiavo’s participation in the Peer program and the asso-ciated restrictions and requirements of this supervision agreement.

¶13 On March 30, 2011, the Griffin Director of Nursing contacted the Peer program to report that Schiavo was terminated from Griffin for “doing things with out (sic.) Dr. Orders; ‘pelvic exams’”.10 On April 26, 2011, the Peer Assis-tance Committee met and found that Schiavo


was non-compliant and in default with his Peer contract as follows:

Item #8: Failure to follow the Supervised Practice Guidelines, working without a Supervisor present prior to approv-al by the Committee.

Item #9: Participant failed to follow the Poli-cy and Procedure of the employing institution, Griffin Memorial Hospi-tal and subsequently was terminat-ed. (Emphasis added).11

Schiavo was terminated from the Peer program as a direct result of this default. The OBN then revoked Schiavo’s registered nursing license because of his involuntary termination from the Peer program.12

¶14 Doe also filed a criminal report against Schiavo with the Cleveland county Sheriff’s office. This investigation took place after the OIG interviews. This time, both Schiavo and Mudassir told the criminal investigator that Schiavo performed the pelvic exam at the direction and order of Mudassir. Although there is no written physician order in the med-ical chart or physician note, the criminal inves-tigator relied on information from interviews that Mudassir gave a verbal order to Schiavo for the exam. The district attorney concluded if Schiavo acted under the direction of a licensed physician, the pelvic exam would be appropri-ate. Accordingly, there would be insufficient evidence of a crime. The Cleveland County district attorney’s office declined to prosecute and cleared the case by exception.13 The inves-tigation results and decision of the district attorney was communicated to Watkins. She was again told that Schiavo performed the pel-vic exam of Ms. Doe at the direction of the physician.

¶15 Ms. Doe’s mental health condition remained unstable following her discharge from Griffin on March 21, 2011. During the fourteen months that followed, she spent approximately 107 days at mental health facili-ties for inpatient psychiatric treatment. At least 75% of these admissions were for court-ordered psychiatric treatment. In addition to chronic mental health issues, Ms. Doe has a cognitive disability. The record reflects that in elementa-ry school her IQ was determined to be 68.

¶16 On May 10, 2012, Watkins was appoint-ed guardian of her daughter. Shortly thereafter, she obtained medical records from Griffin that

included the March 19, 2011, admission and a subsequent admission. Following her review, she discovered the medical chart did not con-tain a physician order or physician note relat-ing to the vaginal exam by Schiavo. Watkins also found a reference in a discharge summary from a subsequent hospital stay suggesting there was more to the OIG investigation of Schiavo than she had been told. In addition, there is a note acknowledging that “[Ms. Doe] on a prior admission had been victimized by a staff member who was subsequently terminat-ed because of that incident. The nature of the incident was sexual and [Ms. Doe] reported that simply being here was difficult.”14 Watkins learned for the first time in July, 2012, that: (1) Schiavo was terminated from Griffin in con-nection with this incident; (2) there was no physician order or note for the pelvic exam; and (3) Griffin viewed Ms. Doe as having been victimized by Schiavo’s actions.

¶17 After learning these additional facts, on August 6, 2012, Watkins submitted a notice under the GTCA for “sexual assault”15 of Ms. Doe for the pelvic exam done during the Grif-fin inpatient admission. This notice was reject-ed as untimely stating it had been more than 12 months since the March 19, 2011, hospital admission. Watkins subsequently filed her Petition with the district court on February 1, 2013, which was almost two years after the incident and nine months after her appoint-ment as guardian.

¶18 Discovery proceedings in this litigation revealed even more facts previously unknown to Watkins. These later discovered facts form the basis of some of Watkins’ additional claims. Deposition testimony from Schiavo suggests evidence of a potentially darker story of deceit and fraud. Schiavo invoked his Fifth Amend-ment right to remain silent and refused to answer a number of questions. This refusal alludes to the possibility of intentional decep-tion by both himself and Mudassir. Schiavo invoked his right to remain silent when asked to admit to the following:

• He never called Mudassir prior to perform-ing pelvic exam of Ms. Doe.

• He never received an order to perform the assessment on Ms. Doe.

• He performed unauthorized pelvic exams on at least two other females.

• He lied to the OIG investigator.


• He lied to the Cleveland County Sheriff’s department.

• He lied to the OBN investigators.

• He lied to an investigator with the Attor-ney General’s office.

• He conspired with Mudassir.

• He obstructed justice.

• He concealed facts.16

• Did [Schiavo] engage in the conspiracy or coverup to hide the facts of what really happened?17

SUMMARY JUDGMENT STANDARD

¶19 An order granting summary judgment in favor of Defendants was filed on November 18, 2014. Plaintiff appealed and the Court of Civil Appeals affirmed, holding: (1) the discovery rule did not toll the limitations period under the GTCA because Watkins knew or in the exercise of reasonable diligence should have known sufficient facts as of March 19, 2011 to state a claim; and (2) the tolling provision of 12 O.S. 2011 § 96 does not act to toll the limitations period due to Ms. Doe’s claimed legal disabil-ity. We hold that when Watkins knew or reason-ably should have known sufficient facts to assert her claims involve disputed issues of material fact and are properly determined by the trier of fact. Accordingly, we need not address the issue of the tolling provision for a legal disabil-ity under 12 O.S. 2011 § 96.

¶20 Summary judgments are not favored and should only be granted when it is clear there are no disputed material fact issues. Fargo v. Hays-Kuehn, 2015 OK 56, ¶12, 352 P.3d 1223, 1227. We have consistently held that summary judgment should be denied where there are controverted material facts. Id. The appellate standard of review of a summary judgment is de novo. Wing v. Lorton, 2011 OK 42, ¶ 9, 261 P.3d 1122, 1125.

ANALYSIS

¶21 The Oklahoma Governmental Tort Claims Act (“GTCA”), provides the exclusive remedy for an injured plaintiff to recover against a governmental entity in tort. Smith v. City of Stillwater, 2014 OK 42, 328 P.3d 1192. The GTCA narrowly structures the method and time frame for bringing a tort claim against the State. 51 O.S. 2011 §156. The claimant is gener-ally required to give notice and file a formal

action within the prescribed statutory time period. Jarvis v. City of Stillwater, 1987 OK 5, ¶5, 732 P.2d 470, 473.

¶22 The notice provision of the GTCA fur-thers the following legitimate state interests: (1) prompt investigation with fresh evidence; (2) opportunity to correct dangerous condi-tions; (3) quick and amicable resolution of claims; and (4) allows fiscal planning to meet possible liability. Reirdon v. Wilburton Bd. Of Ed., 1980 OK 67 ¶ 4, 611 P.2d 239, 240. Although Ms. Doe’s initial written complaint to Griffin was not an official GTCA notice, it furthered at least two of the identified state interests. The state was afforded a prompt investigation result-ing in swift termination of Schiavo’s employ-ment as well as definitive action with the OBN. Griffin had the opportunity to acquire relevant information and implement corrective action. We find there is no legitimate state interest in protecting state action that results in mislead-ing Ms. Doe or Watkins.

¶23 In Jarvis, the plaintiff, appealing from summary adjudication, sought application of the doctrine of estoppel to prevent the govern-ment from asserting the defense of the time limitation bar under the GTCA. Jarvis, supra. 1987 OK 5, 732 P.2d 470. We identified the spe-cific types of allegations that will estop a defen-dant from raising this defense.18 Included in this list are allegations of “false, fraudulent or misleading conduct or some affirmative act of concealment to exclude suspicion and preclude inquiry, which induces one to refrain from timely bringing an action”.19 We noted that a fact question is generally raised by such allega-tions. However, the plaintiff in Jarvis failed to establish the requisite elements. Thus, we left undecided whether this theory can be invoked against a defendant who seeks to enforce the time limitations set out in the GTCA.20 We find that Watkins’ allegations of false and mislead-ing actions by the state falls into one of the categories for estoppel and raises questions of fact.

¶24 Estoppel has been applied against the state or its agencies where “its interposition would further some principle of public policy or interest”. Burdick v. Independent Sch. Dist., 1985 OK 49 ¶ 7, 702 P.2d 48, 53. (Emphasis added). The dispositive question raised by Watkins is whether under the facts presented, is there a prevailing public interest to create an exception from the strict limitation bar in the GTCA. Today we examine the application of estoppel


under these facts and in light of allegations of potential fraud or concealment.

¶25 The record raises questions of fact regard-ing whether the state actively concealed or engaged in fraudulent or misleading conduct with respect to Ms. Doe’s claims. Such factual issues are to be resolved by the trier of fact. Unlike the plaintiff in Jarvis who failed to establish any elements of estoppel, this record contains sufficient evidence suggesting mis-leading conduct or deception by the state. There is evidence that Griffin knew that Schiavo had no physician order for the exam. The Grif-fin Director of Nursing notified the OBN of Schiavo’s termination of employment as a direct result of performing pelvic exam without physician orders. Watkins testified by affidavit that Griffin communicated that Schiavo had done nothing improper and his acts were pur-suant to physician order. Such a representation is directly at odds with the report made by the Griffin Director of Nursing to the OBN.

¶26 There is also evidence to suggest that both Schiavo and Mudassir may have provided false information in the investigations con-ducted in the Griffin and criminal matters. Defendants argue that it was a representative from the criminal investigation and not a Grif-fin representative that led Watkins to believe there was a physician order for the pelvic exam. Defendants urge that it cannot be held as deceiving Watkins for information provided by the district attorney or sheriff’s department. We find such an argument irrelevant. Any con-clusion reached by the district attorney or the sheriff was a direct result from potentially false and misleading information provided by Griffin employees, Mudassir and Schiavo.

¶27 The record contains sufficient evidence to raise a question as to whether Watkins and Ms. Doe were misled, deceived or were provid-ed false information. It is for the trier of fact to determine if Defendants’ conduct was mislead-ing and whether such conduct induced Watkins to refrain from bringing a timely action.

¶28 Under these very narrow facts, estoppel may be applied to a time limitations defense under the GTCA. In this unique instance, estoppel furthers legitimate state purposes of not rewarding potentially wrongful govern-ment conduct and avoiding liability in tort. Ms. Doe, who was a teenager at the time, was very fragile at the time of her Griffin admission. Griffin was to protect her and provide a safe

environment. Instead, she was subjected to a pelvic exam that appears to have been done without a physician order and in violation of hospital policies. Next, the record suggests that she and Watkins were misled into believing that no wrongdoing occurred. This apparent deception is a second and separate potential harm from the initial unauthorized pelvic exam. The nurse’s actions led to the termina-tion of his employment with Griffin and the OBN revoked his nursing license. There is no legitimate state interest advanced by the state avoiding any potential liability in this matter through deceptive actions.

¶29 A statute of limitation is designed to run against those who “are neglectful of their rights, and who fail to use reasonable and proper diligence in the enforcement thereof.” Seitz v. Jones, 1961 OK 283, ¶ 11, 370 P.2d 300, 302. The purpose of a limitations statute is to protect a defendant who might otherwise be compromised in defending a claim that has grown stale as a direct result of a person who has negligently failed to pursue their rights. Id. The record lacks evidence that Watkins or Ms. Doe acted negligently with respect to express-ing concern about the incident with Griffin. To the contrary, Ms. Doe and Watkins notified Griffin of the concern surrounding the pelvic exam. Watkins then followed up with Griffin and was led to believe there was no reason for concern. Griffin had the benefit of a prompt and fresh investigation. There is no evidence that the timing of the filing of the Petition less than two years from the incident will compro-mise the government from defending a “stale”claim. In fact, Griffin had the benefit of an investigation and the assimilation of informa-tion within less than one month after the event.

¶30 We have also recognized the application of the discovery rule to toll the statute of limi-tations in general tort actions. Woods v. Prest-wick House, Inc., 2011 OK 9, 247 P.3d 1183. This rule allows the limitation period to be tolled until such time as the person knows or in the exercise of reasonable diligence, should have known sufficient information to be aware of the claims. Id., 2011 OK 9 at ¶ 24, 247 P.3d at 1189. Whether a plaintiff has used diligence in the pursuit of a claim or when a plaintiff as a reasonably prudent person knew or should have known of a claim is a question to be resolved by the trier of fact considering the unique facts and circumstances. Wing v. Lorton, supra. 2011 OK 42, at ¶ 18, 261 P.3d 1122, 1127.


¶31 We hold under this very narrow set of facts, the doctrine of estoppel may be applied to bar the Defendants from asserting the defense of the one year time limitation of the GTCA. For this doctrine to apply, the trier of fact must first determine if there is sufficient evidence of defendants’ false, fraudulent, or misleading conduct, or an affirmative act of concealment to exclude suspicion and preclude inquiry, to induce Watkins from timely bring-ing an action. We find such a determination rests solely with the trier of fact. We further find that it is for the trier of fact to determine when Watkins knew, or in the exercise of rea-sonable diligence should have known, suffi-cient information to be aware of her claims. Accordingly, the opinion from the Court of Civil Appeals is vacated, the district court’s grant of summary judgment is reversed, and this matter is remanded to the district court for proceedings consistent with this opinion.

CERTIORARI PREVIOUSLY GRANTED; COURT Of CIVIL APPEALS’ OPINION

VACATED; DISTRICT COURT’S JUDGMENT REVERSED; AND MATTER

REMANDED fOR fURTHER PROCEEDINGS

REIF, C.J., COMBS, V.C.J., KAUGER, WATT, EDMONDSON, COLBERT, GURICH, JJ. - CONCUR

WINCHESTER, TAYLOR, JJ. - DISSENT

WATT, J.:

1. Watkins initially included as a defendant, Nicholas Schiavo, the male nurse who conducted the pelvic exam on Ms. Doe. Before filing the Third Amended Petition, Watkins filed a dismissal without preju-dice as to Schiavo after he filed for relief in bankruptcy.

2. For the relevant time period relating to Plaintiff’s claims, Ms. Doe was admitted to Griffin on March 19, 2011 and discharged March 21, 2011.

3. See, Plaintiffs’ Response to Defendants’ Motion for Summary Judgment and Brief in Support, Plaintiff’s Exhibit 3, “Griffin Memorial Hospital Complaint/Grievance Form, wherein Ms. Doe states, “Satur-day, I (sic.) had contractions, I’m five months pregnant a staff nick Did a pelvic exam with no doctor or female present then joked and asked if I (sic.) wanted him to check me again After I felt better and was ask-ing me if I wasn’t with the father was I (sic.) looking to see other people and touched my shoulder I felt very violated. And talked to the female Doctor which she said it was wrong of him to make jokes and it was unprofessional but Did nothing I feel like he had no right or was qualified to Do so I feel action needs to be taken Due to this prior event so no woman should endure this type of Abuse this shouldn’t go unoticed (sic.) at p. 411- 413.

4. See, Record, Tab 13, Plaintiffs’ Response to Defendants’ Motion for Summary Judgment and Brief in Support, Exhibit 3, ODMHSAS investigation file, Investigator Michael DeLong report.

5. See note 4, supra.6. See, note 4, supra.,7. See, note 4, supra., Exhibit 6.8. 59 O.S. 2011, § 567.17.9. See, Record Tab 20, Defendants’ Response to Plaintiffs’ Motion

for Partial Summary Judgment, Exhibit 4, “Supervised Practice Agree-ment: Nicholas C. Schiavo, RN, which provides in pertinent part:

4. Both the program participant and the supervising nurse are employed at the same facility working the same schedule during the assigned shift and are on the same unit/floor during the entire shift. At least one (1) of the supervising nurses must be present when the program participant is working.

10. See, note 4, supra., Exhibit 14, Peer Assistance Program, OBN, Log of Transactions for Nicholas Charles Schiavo.

11. See, note 4, supra., Exhibit 15, Before the Peer Assistance Com-mittee, Termination/Finding of Default.

12. See, Record, Tab 20, Defendants’ Response to Plaintiffs’ Motion for Partial Summary Judgment, Exhibit 6, OBN Licensure History Report.

13. See, note 4, supra., Exhibit 7, Cleveland County Sheriff’s Office Criminal Investigation Division; “[Det. Sgt. Scott A. Singer] spoke with the nursing supervisor and Mr. Mays. Both assured me that by policy, only under the advice of a physician, are such examinations made. Normally, the protocol allows for the patient to be transported to Nor-man Regional Hospital Emergency Department and the examination done there. A caveat to the above policy is if a physician directs a reg-istered nurse to perform an initial examination to determine if trans-port is necessary can one be performed at Griffin Hospital. As [Det. Sgt. Singer’s] investigation continued, Mr. Schiavo contacted me and agreed to speak with me about the incident. He told me that [Ms. Doe] was on his ward...... [Schiavo] told [Det. Sgt. Singer] that when she complained of contractions, he contacted Dr. Asma Mudassir. Dr. Mudassir according to Schiavo and Randy Mays told Schiavo to con-duct the examination and to report his findings as soon as possible. While not noted on the nursing notes, Dr. Mudassir confirmed this accounting.”

14. See, note 4, supra., Exhibit 17, Discharge Summary, 10-14-201115. The formal complaint filed with Griffin during Ms. Doe’s hos-

pital stay was in the nature of sexual harassment not assault.16. See, note 4, supra., Exhibit 1, Deposition of Nicholas Charles

Schiavo, Volume I, May 21, 2014. Relevant excerpts include:Q. Okay. You would agree that before your assessment of [Ms. Doe], you never called Dr. Mudassir. Correct?A. On advice of counsel, I respectfully invoke my Fifth Amend-ment right to remain silent.Q. Okay. I think I had read in some prior statements that you had - - that you had said, I didn’t call Dr. - - or Dr. Mudassir before the examination, but I called her afterwards.A. On advice of counsel, I respectfully invoke my Fifth Amend-ment right to remain silent.Q. Would you agree that Dr. Mudassir never asked nor ordered you to perform the assessment on [Ms. Doe]? Record, p. 349.Q. Okay. And after the assessment was concluded, you didn’t chart that assessment and that it took place or the findings of that assessment?A. On advice of counsel, I respectfully invoke my Fifth Amend-ment right to remain silent.Q. You would agree that you’ve performed similar assessments on at least two other women at Griffin Memorial?A. On advice of counsel, I respectfully invoke my Fifth Amend-ment right to remain silent.Q. Okay. Have you ever lied to police investigators?A. On advice of counsel, I respectfully invoke my Fifth Amend-ment right to remain silent.Q. Had - did you ever lie to Michael Long [the OIG investigator]?A. On advice of counsel, I respectfully request to invoke my Fifth Amendment right to remain silent.Q. Did you lie to any investigators for the nursing board?A. On advice of counsel, I respectfully invoke my Fifth Amend-ment right to remain silent.Q. Was there a time that you lied to the Cleveland County Sher-iff’s Department or their investigators?

MR. KERNAL: Same thing.A. On advice of counsel, I respectfully invoke my Fifth Amend-ment right to remain silent.

BY MR. OLDFIELD:Q. Was there ever a time that you ever lied to any law enforce-ment as it relates to this case:

MR. KERNAL: Same thing.A. On advice of counsel, I respectfully invoke my Fifth Amend-ment right to remain silent.

BY MR. OLDFIELD:Q. Have you ever lied to any investigator with the State or the Attorney General’s Office?

MR. KERNAL: Same thingA: On advice of counsel, I respectfully invoke my Fifth Amend-ment right to remain silent.

BY MR. OLDFIELD:


Q: Have you ever conspired with Dr. Mudassir as it relates to this case?

MR. KERNAL: Same answer.A. On advice of counsel, I respectfully invoke my Fifth Amend-ment right to remain silent.

BY MR. OLDFIELD:Q. Have you ever obstructed justice in this case?

MR. KERNAL. Same answer.A. On advice of counsel, I respectfully invoke my Fifth Amend-ment right to remain silent. Record 356-358.Record, pp. 356-358.

BY MR. OLDFIELD:Q. Did you cover up or conceal any facts to any law enforcement regarding this case and the circumstances surrounding [Ms. Doe’s] assessment and the orders that were given to you?

MR. MCGARRY: Objection.A. On advice of counsel, I respectfully invoke my Fifth Amend-ment right to remain silent.

BY MR. OLDFIELD:Q. Did you engage in a coverup or concealment of any facts as it relates to this case?A. On advice of counsel, I respectfully revoke my Fifth Amend-ment - - I respectfully invoke my Fifth Amendment right to remain silent. Record, pp. 363-364.

17. See, Record, Tab 15, Plaintiff’s Motion for Partial Summary Judgment Against Defendants Central State Griffin Memorial Hospital and the Oklahoma Department of Mental Health and Substance Abuse Services and Brief in Support, Exhibit 1, Deposition of Nicholas Charles Schiavo, Volume 1.

18. “A fact question as to whether a defendant is estopped from interposing the defense of a time bar is generally raised by a plaintiff’s allegations that the defendant had made (a) some assurance of settle-ment negotiations reasonably calculated to lull the plaintiff into a sense of security and delay action beyond the statutory period, or (b) an express and repeated admission of liability in conjunction with prom-ises of payment, settlement or performance, or (c) any false, fraudulent or misleading conduct or some affirmative act of concealment to exclude suspicion and preclude inquiry, which induces one to refrain from timely bringing an action.” Jarvis at ¶4.

19. See note 18, supra.20. See note 18, supra.

2016 OK 72

STATE Of OKLAHOMA, ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. GLENN MARTIN

MIRANDO, Respondent.

SCBD No. 6329. June 21, 2016

ORIGINAL PROCEEDING FOR ATTORNEY DISCIPLINE

¶0 Attorney was charged with attorney misconduct in violation of Rules 1.1, 1.3, 1.4, 1.5, and 8.4(a), Oklahoma Rules of Pro-fessional Conduct (ORPC), and Rule 5.2, Rules Governing Disciplinary Proceedings (RGDP). Previous discipline was imposed in 2011 for similar acts of client neglect and failure to respond to the Oklahoma Bar Association. This Court finds Respondent should be suspended two years and a day from the practice of law. Respondent is also ordered to pay the costs of this proceeding, to account for the funds of his Ward and to comply with Rule 9.1, RGDP. Compliance with Rule 11.1(b), RGDP, and supervision are required as a condition to reinstatement.

RESPONDENT SUSPENDED fOR TWO YEARS AND A DAY; COSTS IMPOSED; SUPERVISION, ACCOUNTING, AND

COMPLIANCE WITH RULES 9.1, 11.1(b), RGDP, ORDERED.

Stephen L. Sullins, Assistant General Counsel, Oklahoma Bar Association, Oklahoma City, Oklahoma, for Complainant,

Glenn Martin Mirando, Tulsa, Oklahoma, Pro Se.

OPINION

WATT, Justice:

¶1 On October 21, 2015, Complainant Okla-homa Bar Association (the Bar) filed its com-plaint against Respondent Glenn Martin Mirando, pursuant to Rule 6, Rules Governing Disciplinary Proceedings (RGDP), 5 O.S. 2011, ch. 1, app. 1-A, alleging specific acts of profes-sional misconduct, in violation of the Oklaho-ma Rules of Professional Conduct, 5 O.S. 2011, ch. 1, app. 3-A. The complaint contains eight counts of allegations of attorney misconduct based on grievances filed with the Bar by former clients of Mirando. Each count of the complaint contains an allegation that Mirando wholly failed to respond to the particular grievance as required by Rule 5.2, RGDP.1 The complaint was later deemed amended to add two addi-tional counts of misconduct against Mirando which arose after the filing of the complaint and the evidentiary hearing held before the Professional Responsibility Tribunal (PRT). The Bar recommends suspension of Mirando’s license for two years and one day and the assessment of costs in the amount of $2,825.99.

¶2 On December 10, 2015, the PRT held a hearing on the Bar’s allegations against Miran-do. Mirando did appear at the hearing. Each of the eight former clients named in the com-plaint testified, either in person or by tele-phone. The PRT filed its Trial Panel Report on January 11, 2016, with this Court. It recom-mended suspending Mirando from the prac-tice of law for one year and assessing the costs of this proceeding against him. The recommen-dation also included requiring him to attend training in law office management.

JURISDICTION AND STANDARD OF REVIEW

¶3 This Court has exclusive original jurisdic-tion over Bar disciplinary matters. State ex rel. OBA v. Parker, 2015 OK 65, 359 P.3d 184, citing State ex rel. OBA v. Funk, 2005 OK 26, ¶3, 114


P.3d 427, 430. We exercise our constitutional, nondelegable power to regulate the practice of law and the ethics, licensure, and discipline of its practitioners. State ex rel. OBA v. Passmore, 2011 OK 90, ¶15, 264 P.3d 1238, 1243. The Bar must prove its allegations of lawyer miscon-duct by clear and convincing evidence. See RGDP Rule 6.12c;2 Passmore, supra, at 1243. This Court decides whether misconduct has occurred, and, if so, the appropriate discipline to be imposed. State ex rel. OBA v. Zimmerman, 2012 OK 35, ¶15, 276 P.3d 1022, 1027, citing Passmore, supra. In this Court’s de novo stan-dard of review, we are not bound by the PRT’s findings of fact, its view of the evidence, the credibility of witnesses, or its recommendation for discipline. Passmore, supra, at 1243. The primary purpose of lawyer disciplinary pro-ceedings is the protection of the public and purification of the Bar, rather than the punish-ment of the offending lawyer. State ex rel. OBA v. Bellamy, 2012 OK 20, ¶8, 273 P.3d 56, 61-62.

¶4 Mirando testified he served as director of Lawyers Helping Lawyers for nine years. He is a recovering alcoholic, but he has been sober for approximately 19 years. There have not been allegations that he has resumed drinking.

ENHANCEMENT

¶5 The complaint filed in this case alleges that this Court previously disciplined Mirando on November 28, 2011, in SCBD No. 5736, by a private reprimand. The discipline was imposed because of the neglect of his clients, in violation of Rules 1.3, 1.15, 8.1(b), and 8.4(a) ORPC, and for his failure to respond in a timely manner to the Bar, in violation of Rule 5.2 RGDP. This Court may consider prior discipline for the purpose of enhancement of discipline in a later case. See State ex rel. OBA v. Knight, 2015 OK 59, 359 P.3d 1122. The Bar must allege in the com-plaint the former discipline imposed if it seeks enhancement in the current case. See Rule 6.2, RGDP, 5 O.S. 2011 Ch. 1, App. 1-A.3 The Bar gave notice in the current complaint that enhancement of discipline was being recom-mended against Mirando.

THE COMPLAINT

¶6 In each count, the Bar advised Mirando in writing of the particular allegations of each grievance and requested a response within a specific time. In each case, Mirando failed to respond. The alleged misconduct in each griev-ance, although varying in specific detail, has an underlying theme of Mirando’s failure to com-

municate with his clients. Each grievance con-tains an allegation that the fees paid were unearned, but were never returned to the cli-ent, as well as an allegation that Mirando failed to respond to the Bar’s repeated inquiries. Each count contains an allegation that Mirando vio-lated Rules 1.1,4 1.3,5 1.4,6 1.5,7 and 8.4(a),8 ORPC. As previously noted, each count also contains an allegation that Mirando violated Rule 5.2, RGDP, supra.

THE GRIEVANCES AND EVIDENCE

¶7 Count I: The Yurchenko Grievance

In December, 2010, Anna Yurchenko hired Mirando to represent her in an immi-gration matter. She complained that despite attempting to reach him after receiving let-ters about her immigration status, Mirando did not return her calls. She alleged she paid him more than $7,000.00 to represent her, but he did little on her case. She filed a grievance with the Bar on December 22, 2014. Mirando failed to respond to two let-ters from the Bar concerning the griev-ance, and the matter was opened for for-mal investigation.

Although there was evidence that Mirando represented her well in several criminal and immigration matters, requir-ing travel between Tulsa and Oklahoma City, there was also evidence that she was arrested and threatened with deportation for missing a court appearance about which she was unaware.

¶8 Count II: The Whitman Grievance

In March, 2014, Lisa Whitman hired Mirando to represent her in her divorce case and paid him a fee of $2,500.00. She alleged that Mirando stopped contacting her, although she made numerous attempts to contact him. He missed a court date and failed to communicate with her, and she terminated him. On February 12, 2015, Whitman filed a grievance with the Bar against Mirando.

Mirando claims he earned his fee in the divorce case by properly filing the case, attending court appearances and working on discovery and research. A “miscommu-nication” was given as the reason for miss-ing a court date. Although he claims he returned her file to her new attorney, Whit-man disputes this. He failed to respond to


any correspondence from the Bar concern-ing this grievance.

¶9 Count III: The Moody Grievance

In October, 2014, Christopher Moody hired Mirando to represent him in a crimi-nal matter for which he paid a fee of $1000.00. Moody alleged Mirando failed to file an Entry of Appearance, did little work on the case, and failed to communicate with him about it. On March 27, 2015, Moody submitted a grievance to the Bar which noti-fied Mirando. He did not respond.

Moody testified Mirando was to file a writ for him to return to Washington Coun-ty and negotiate a plea on new charges in Tulsa County. Although satisfied about the outcome of the Tulsa County case, Moody was forced to file the writ himself. He was in a halfway house and was able to work at the time of the PRT hearing, but claimed Mirando’s lack of communication had re-sulted in a three month delay in his becom-ing eligible for a lower level of security.

¶10 Count IV: The Mendoza-Darby Griev-ance

Lorraine Mendoza-Darby hired Miran-do to represent her on a DUI charge and paid a fee of $1,700.00. She claimed he failed to inform her of a court appearance which she missed and for which she was later arrested. She also alleged Mirando failed to make a diligent attempt to get her out of jail or to reduce her bond, although it was disputed whether Mirando repre-sented her at the time. The judge refused his request to pull the warrant. After the warrant was executed a few months later, she was assigned a public defender and she pled guilty into DUI court. The com-plaint also alleges he failed to communi-cate with her and to earn his attorney fee. She submitted a grievance against him to the Bar which advised him the matter had been opened for formal investigation. He failed to respond.

¶11 Count V: The Blake Grievance

In 2013, Glennon Blake hired Mirando to represent him to obtain a reinstatement of his license to practice law in Oklahoma. Blake paid Mirando a fee of $2,500.00. Blake alleged he met with Mirando five or six times, for a total of three hours. Although

Mirando represented Blake for more than 18 months, he failed to file any reinstate-ment documents with the Bar on Blake’s behalf. It is alleged that although Blake tried to communicate with Mirando by mail, e-mail and telephone, Mirando would not communicate with him. He never returned Blake’s fee or his file. Moreover, when Blake hired another lawyer, he had to obtain new letters of recommendation from character witnesses. Mirando was notified by the Bar that Blake filed a griev-ance against him, but Mirando never responded to the Bar.

¶12 Count VI: The Triplett Grievance

Joshua Triplett, a Minnesota resident, hired Mirando to represent him on a DUI charge and some pending warrants. He paid $2500.00 to Mirando to find out what was pending on a DUI in Talihina and to help him get his license back. He said Mirando made no appearances on his behalf and did no work on a DPS case which is still pending. He had to pay all the fines and work everything out over the telephone himself instead of having local representation. Mirando stated he investi-gated the matters and asked Triplett when he was coming back to Oklahoma. He never received a response and never fol-lowed up. Triplett disputes that Mirando told him to return to Oklahoma. He alleged Mirando failed to return phone calls or to communicate with him and that he failed to earn his attorney fee. Mirando believes he earned approximately $800 to $1000 of the fee. The Bar notified Mirando the matter had been opened for formal investigation and requested a response, but Mirando did not respond.

¶13 Count VII: The Shalaby Grievance

On September 10, 2014, Ranya Shalaby paid Mirando $2,500.00 to represent her in an employment matter. She testified by telephone from Cairo, Egypt, that he was to write a “cease and desist” letter to the American CEO of the American Universi-ty in Cairo, Shalaby’s employer. She testi-fied Mirando did not write the letter she hired him to write. He was to show her a copy of it before sending it, which he failed to do. She heard nothing from him. Shala-by at-tempted to contact Mirando numer-ous times, but she was unable to reach him.


Mirando presented an undated copy of the letter he prepared for the university offi-cial, but Shalaby said she never saw it and did not know of it being sent. She submit-ted a grievance to the Bar against him, but as of the date the complaint was filed, Mirando had failed to respond.

¶14 Count VIII: The Gibson Grievance

Christopher Gibson paid Mirando $500.00 to represent him on a case involving Revoca-tion of Probation which was unsuccessful. Gibson testified by telephone that he paid Mirando an additional $750.00 to file an appeal. He claimed Mirando neither filed the appeal nor communicated with him about the case.9 Mirando questioned Gib-son about whether it was possible he had agreed to look into the feasibility of filing an appeal, but decided there was no point in filing one. Gibson said his grandmother told him Mirando said he would file one, and she paid him $750 to do so. Mirando later testified the $750 was for past attor-ney fees, and that he later told Gibson’s wife that he did not see any basis for filing a direct appeal.

THE BAR’S SUPPLEMENT TO THE RECORD

¶15 On March 7, 2016, the Bar filed its Com-plainant’s Supplement to the Record. It alleged that two additional grievances had been filed against Mirando after the date of Mirando’s disciplinary hearing. The Bar advised the Court that Mirando had failed to respond to its notic-es of the grievances and requested direction from the Court as to how to proceed. On March 22, 2016, an order was filed directing Mr. Mi-rando to respond to the Court on the latest allegations no later than April 11, 2016.10 We noted his failure to respond to the Bar and advised him that if no further response was received, the complaint would be deemed amended to include the latest charges raised against him, and the facts contained therein would be deemed admitted. Mirando filed no response to either grievance or to this Court’s order.

¶16 Count IX: The Gilbertson Grievance

Melvin Gilbertson is the attorney for the Ward, Susan Wiemar, in a Trust in which Mirando is the Guardian of the Person and the Estate. In a hearing before the Tulsa County District Court, Gilbertson alleged that $450,000.00 of the Ward’s money was

deposited into an account controlled by Mirando, and the whereabouts of the funds is unknown. Mirando failed to appear in Tulsa County, and a bench warrant was issued for him. The trial court advised Gil-bertson to file a bar complaint against Mirando. Following the hearing, on March 3, 2016, the trial court filed its Order for Surcharge against Glenn Mirando. The order personally surcharged Mirando for the sum of $492,286.00 and ordered him to pay the legal fees and costs incurred by the Ward in the matter. It also ordered Miran-do to reimburse the Ward “for the federal and state taxes that were incurred and paid for by the Ward for the calendar years 2013, 2014 and 2015 that were the result of the unexplained funds in the amount of $492,286.00 being included in the individu-al income tax returns of the Ward. This amount will be subsequently determined by Melvin L. Gilbertson and an application shall be submitted to the Court for approv-al.” Mirando did not respond to the Bar’s notice.

¶17 Count X: The Lindsey Grievance

The Bar alleges that Chris Lindsey sub-mitted a grievance against Mirando on February 5, 2016. He claimed he hired Mirando in November, 2015, on a criminal charge and paid him $1250.00 to represent him. Mr. Lindsey complained that Mirando would not return his phone calls or text messages and failed to communicate with him. He requested the return of his money and terminated his services. Mirando failed to respond to the Bar’s notice of the Lind-sey grievance.

MIRANDO’S PRACTICE

¶18 Mirando testified he does not utilize written contracts with his clients. He does not keep a record of the attorney fees which have been paid, except to deposit them in an operat-ing or personal account, and cannot show what fees represent work which is already done. He testified he keeps “very little” contemporane-ous time records in his practice. He considers his fees to be “flat fees” which cover the entire agreement with a client. He also testified he believes he is a good lawyer and has repre-sented his clients well, particularly his criminal clients. He blamed himself for the problems he now faces, saying he puts things on the “back


burner” with good intentions to follow up, but he often fails to do so.

¶19 He testified the matters which consume most of his time, or which are on the “front burner,” besides his family, are daily court appearances and things needed “right then and there.” He may have two or three arraign-ments, a two-day long preliminary hearing or a week-long trial. There is rarely a day that he is not in court.

¶20 Although he shares office space with another lawyer, they have separate corpora-tions, but work a lot together on cases. He has a legal assistant who answers the phone, does some drafting, and sets some appointments. He testified there is no reason his legal assis-tant couldn’t have helped him monitor the progress of his cases or to assist him in return-ing his clients’ phone calls. He said in hind-sight, it is something he should have asked him to do.

¶21 He also testified he had not shared his disciplinary problems with his wife or his therapist, whom he sees for depression. Even his legal assistant, who knew of the hearing, did not know the extent of the matter. He stat-ed it was an “embarrassment” and in some cases, it was an “affront” to him, because he works hard for his clients and tries to obtain the best results. He admitted there is also a “fear element” which arose after he failed to respond. He said:

And it was neglectful at that time. After that it’s been — you know, since then, which has been a couple of months, it’s been fear. You know, it’s been fear. I’m not justifying. My actions were you know, ridiculous. I just put — made other priori-ties. I mean, I’d think about it and I’d say, “Okay. I’ve got a trial”. So, I prepared for trial and go on a week-long trial. So, recent-ly there’s been a fear element. And I expect — and you’re right.

¶22 The evidence suggests Mirando responds to inquiries from his clients in much the same way he deals with questions from the Bar about his clients. When clients want informa-tion about the status of their cases, he is hesi-tant to return their phone calls. Similarly, after grievances are filed and he is again asked for the status of his cases, he has systematically ignored requests for information, when in fact, the evidence indicates he has done much of the work he agreed to do. Because of his severe

lack of record keeping and his practice of tend-ing only to “front burner” issues, he ultimately ignores both his clients and the Bar. This persis-tent avoidance of responsibility has led to the necessity of the Court’s involvement.

MOTION TO DEEM ALLEGATIONS ADMITTED

¶23 The Bar filed a motion to deem allega-tions admitted because Mirando failed to respond to the allegations in the complaint. Prior to the presentation of the Bar’s evidence, the Bar advised the Presiding Master it intend-ed to present the same evidence, regardless of whether the motion to deem allegations admit-ted was granted. Pursuant to Rule 6.4, RGDP,11 even when the allegations are deemed admit-ted, evidence shall be submitted to determine the appropriate discipline. OBA v. Knight, 2015 OK 59, ¶19, 359 P.3d 1122, 1128. Rule 6.4 was followed in this case. The Presiding Master allowed the submission of evidence by the Bar and took the motion under advisement before later granting it after much of the Bar’s evi-dence was presented. She found that as a result of Mirando’s failure to respond to the com-plaint, the Bar had no opportunity to investi-gate, to verify Mirando’s defenses or to test them at trial, and that the complaint did not implicate a public policy interest. Thereafter, the trial panel found the only remaining issue was to hear the evidence to determine the appropriate discipline to be imposed. While Mirando did not present evidence of his own, his former clients testified, by phone or in per-son, and he cross examined each of them. He offered portions of their cross examination testimony as evidence of mitigation. The Bar’s direct examination of Mirando provided fur-ther evidence of mitigation.

RULES 1.1, 1.3, 1.4, 1.5, 8.4(a), ORPC

¶24 We agree with the PRT that clear and convincing evidence of a lack of competence, in violation of Rule 1.1, ORPC, was not shown. In many instances, Mirando was an effective advocate for his clients. Moreover, counsel for the Bar stated Mirando was a competent law-yer, particularly in the courtroom.

¶25 The Bar has presented clear and convinc-ing evidence of Mirando’s violation of Rules 1.3, 1.4, and 1.5, ORPC. In each grievance in the complaint and in the supplement to the record, Mirando’s lack of diligence has been alleged and proved. It was shown by his failure to con-tact his clients when repeated attempts to con-


tact him were made. He admitted his attention went to the cases in which he had trials or other court appearances “right then and there.” The evidence presented of his consistent lack of contact with his clients, leading to their inability to talk to him about their cases, or their need to hire other counsel, was a clear violation of Rule 1.3, ORPC.

¶26 Although the evidence shows he did much of the work he was hired to do for clients Yurchenko, Whitman and Mendoza-Darby, in Counts I, II and IV, Mirando’s lack of diligence was shown by missed court dates for which his clients were penalized by the court. He also failed to file an entry of appearance in the Moody grievance, Count III, and failed to com-municate with all of them.

¶27 In the Blake grievance, Count V, he showed a complete lack of compliance with Rules 1.3 and 1.4. In that case, he was asked by a fellow lawyer for representation in a rein-statement proceeding. He received a fee of $2500.00 but never filed anything on his cli-ent’s behalf. In addition to a lack of diligence and communication, he also violated Rule 1.5 for collecting an attorney fee for which he per-formed no work. Mirando was unable to pres-ent any evidence of mitigation here.

¶28 In the Triplett, Shalaby and Gibson grievances, Counts VI, VII and VIII, the facts are disputed as to whether the work Mirando did was within the agreement he had with his clients. As to Triplett, although Mirando testi-fied he was waiting for Triplett to return to Oklahoma, he admitted he never followed up when he didn’t hear from him. He thus violat-ed Rules 1.3 and 1.4. Additionally, of the $2500.00 paid, Mirando said he thinks he earned approximately $800-$1000. This would constitute a Rule 1.5 violation. As to Shalaby and Gibson, the evidence supports Mirando’s claims that he did perform some of the work he agreed to perform. However, the facts are dis-puted whether Mirando followed through on his agreements with these clients and rendered the services the clients expected. Certainly, vio-lations of Rules 1.3 and 1.4 are apparent, lead-ing to concerns that he didn’t fully earn his attorney fees, in violation of Rule 1.5.

RULE 1.15, ORPC, FAILURE TO MAINTAIN TRUST ACCOUNT

¶29 The PRT determined the evidence clearly showed Mirando failed to maintain a trust account, a violation of ORPC Rule 1.15. How-

ever, the panel found it would violate Miran-do’s rights to due process to discipline him for it because the Bar’s complaint did not include it as an element of his misconduct.12 The Bar responds that the complaint contained suffi-cient facts to put Mirando on notice that a trust account violation had occurred and would be raised. Each grievance contains an allegation that Mirando failed to earn the fees he was paid, and that he failed to return the unearned fees as requested. Citing State ex rel. OBA v. Johnston, 1993 OK 91, ¶19, 863 P.2d 1136, 1143, the Bar contends it is required only to plead sufficient facts to put the attorney on notice of the charges and to provide an opportunity to respond.

¶30 Specific facts which would constitute violations of Rule 1.15, ORPC (trust accounts) were not alleged in the Complaint, and we agree with the Trial Panel the Bar did not give Mirando adequate notice he would be asked to defend a violation of Rule 1.15. See State ex rel. Oklahoma Bar Ass’n v. Besly, 2006 OK 18, 136 P.3d 590; State ex rel. Oklahoma Bar Ass’n v. O’Neal, 1993 OK 61, 852 P.2d 713.

¶31 However, this Court cannot ignore the subsequently filed “Complainant’s Supple-ment to the Record,” which has not been con-tested by Mirando, alleging his failure to account for more than $450,000.00 of his Ward’s money in an account under his control. While not specifically a trust account issue, pursuant to Rule 1.15, ORPC,13 as he was not serving as the Ward’s attorney, the allegations seriously suggest misappropriation of the Ward’s funds. This failure to account resulted in a district court order for surcharge against him in the amount of $492,286.00. The necessity of an accounting for these funds will be a mandatory requirement for Mirando and will be addressed at the discipline stage of this proceeding.

¶32 The lack of a Rule 1.15 allegation in the complaint indicates the Bar was unaware, until Mirando testified, of his failure to maintain a trust account. However, in light of the allega-tions raised after the PRT hearing with regard to his Ward’s funds and Mr. Mirando’s deci-sion to ignore this Court’s order to explain or request a hearing, he cannot complain he was not afforded his fundamental right to due pro-cess. Our ultimate disposition will take into consideration the necessity for maintaining such an account and giving it the attention mandated by our rules.


RULE 8.4(a), ORPC

¶33 In the trial panel report, the PRT also found the Bar failed to prove a violation of Rule 8.4(a), ORPC, holding the Bar presented no evidence of Mirando’s “misrepresentations” or an underlying motive to make a misrepre-sentation.14 As to 8.4(a), however, the miscon-duct contemplated by the rule is the violation, or the attempt to violate, the Rules of Profes-sional Conduct, which we hold has been shown by clear and convincing evidence.

RULE 5.2, RGDP

¶34 We also find that the Bar has presented clear and convincing evidence of Mirando’s violation of Rule 5.2, RGDP. It appears to the Court that Mirando’s failure to respond to the Bar in these matters is an extension of the way he practices law. The leading complaint raised by his clients is the fact he will not communi-cate with them. In each of the grievances, the Bar has documented numerous attempts to contact him for a response. He admitted that in the past when he had promptly responded, the matter was often resolved without the necessi-ty of a formal investigation. He admitted some, if not most, of the current grievances could have been resolved in this way. However, after he put many matters on the “back burner” with the intention of addressing the problems later, he waited until the PRT hearing to defend himself. As the Bar’s witness, investigator Sha-ron Orth, stated, his reasons for not responding were the same today as in the earlier investiga-tions. She stated:

And I would say his answers were similar to what he gave today. Just putting it off, intending to do it and never doing it, then being afraid to do it because he put it off so long. Pretty much the same as what he said today.

DISCIPLINE

¶35 Mirando’s continued lack of attention to his clients and to the Bar require this Court to impose discipline. The prior discipline of a pri-vate reprimand in 2011 for much of the same type of misconduct was apparently insufficient to effect a permanent change in his conduct. Although Mirando explained some of the miti-gating circumstances involved in the charges raised by his clients, his repeated lack of atten-tion to their well-being was evident. Moreover, if he had promptly responded to the Bar, he may have been able to solve many of the prob-

lems raised in the complaint. In addition to a suspension from the practice, we find supervi-sion of his law office practices to be necessary. See gen., State ex rel. OBA v. Prather, 1996 OK 87, 925 P.2d 28.

¶36 A troubling issue to the Court is that the prior discipline was imposed for misconduct which is similar to the misconduct now alleged. Similar habits and patterns appear to have resurfaced and have now led to further griev-ances, as reflected in the current complaint and the two subsequently filed grievances. The Court finds the record is sufficient for our de novo review of the allegations against Mirando. We find clear and convincing evidence has been presented to prove Mirando violated ORPC Rules 1.3, 1.4, 1.5, and 8.4(a), and RGDP Rule 5.2. However, the Bar did not present clear and con-vincing evidence that Mirando lacked compe-tence as a lawyer, in violation of Rule 1.1, ORPC.

¶37 This Court has assessed discipline for lack of attention to clients’ interests in varying forms of discipline. In State ex rel. OBA v. Bene-field, 2005 OK 75, 125 P.3d 1191, the Court ordered a one-year suspension from the prac-tice of law for a pattern of attorney neglect and the failure to represent clients with diligence and competence. Although we hold lack of competence was not shown herein, we do find a pattern of attorney neglect which warrants substantial sanctions when previous discipline has failed to correct the misconduct. Benefield, 2005 OK 75, ¶31, 125 P.3d at 1196.

¶38 Mirando’s continued pattern of client neglect and failure to respond to requests for information indicates a lack of accountability as a lawyer to the Bar and to this Court. Al-though he did attend the PRT hearing, he appeared without witnesses or other evidence to offer on his behalf. This showed a further indifference to these proceedings and to pro-tection of his license to practice law. We are guided by previous cases involving similar offenses and find that Mirando should be sus-pended for two years and a day. In particular, we quote approvingly from a similar case, State ex rel. OBA v. Whitebook, 2010 OK 72, ¶26, 242 P.3d 517, 523:

When a lawyer places so little value on his license to practice law and shows no desire to protect his license, he should be forced to appear before this Court pursuant to rule 11 of the RGDP to show why he should again be allowed to practice law. Thus, we


find the appropriate discipline is suspen-sion from the practice of law for two years and a day. . . .

See also State ex rel. OBA v. Bellamy, 2012 OK 20, 273 P.3d 56; and State ex rel. OBA v. Beasley, 2006 OK 49, 142 P.3d 410, and State ex rel. OBA v. Phillips, 1990 OK 4, 786 P.2d 1242, both cited in Whitebook, supra.

CONCLUSION

¶39 The Bar has filed an application to assess costs in this proceeding against Mirando, pur-suant to rules 6.13 and 6.16, RGDP. The total requested is $2,825.99. The costs consist of cer-tified mail postage expense, process server expense, witness fees and mileage for witnesses and a PRT panel member, and the expense of preparing the transcript of the December 10, 2015, hearing. We find these expenses to be rea-sonable, and the Bar’s application is granted.

¶40 This Court orders as follows:

a) Glenn Mirando is suspended from the practice of law for two years and a day from the date this opinion becomes final;

b) he is ordered to pay the costs of this pro-ceeding in the amount of $2,825.99 within ninety (90) days after this opinion becomes final;

c) at the end of his suspension, Mr. Miran-do is ordered to meet with an OBA lawyer, arranged through the General Counsel’s Office of the Bar, for assistance in case man-agement and docketing, with progress reports to the Court each month for six months. Additionally, within thirty (30) days of the date this opinion becomes final, Mr. Mirando is ordered to account to this Court for the funds of his Ward, Susan Wiemar, in the amount of $492,286.00, which is noted in the Order for Surcharge filed against him in the district court;

d) pursuant to Rule 9.1, RGDP, Mirando is directed to notify his clients who have legal business pending within twenty (20) days, by certified mail, of his inability to repre-sent them and the necessity for retaining new counsel. He is also directed to file a formal withdrawal as counsel in all cases pending in any tribunal and to file an affi-davit of compliance with the Commission and the Clerk of the Supreme Court within twenty (20) days; and to otherwise follow the requirements of Rule 9.1, RGDP; and

e) Mirando is directed to reimburse the Cli-ent’s Security Fund of the Oklahoma Bar Association, pursuant to Rule 11.1(b), RGDP, if any funds have been expended on his behalf, showing the amount paid has been repaid to the Bar, as a condition to reinstatement.

¶41 RESPONDENT SUSPENDED fOR TWO YEARS AND A DAY; COSTS IM-POSED; SUPERVISION, ACCOUNTING, AND COMPLIANCE WITH RULES 9.1, 11.1(b) RGDP, ORDERED.

REIF, C.J., KAUGER, WATT, WINCHESTER, EDMONDSON, TAYLOR, COLBERT, GU-RICH, JJ. - CONCUR

COMBS, V.C.J. - DISSENTING:

“I would disbar this respondent from the practice of law.”

WATT, Justice:

1. Rule 5.2, RGDP, provides:After making such preliminary investigation as the General

Counsel may deem appropriate, the General Counsel shall either (1) notify the person filing the grievance and the lawyer that the allegations of the grievance are inadequate, incomplete or insuf-ficient to warrant the further attention of the Commission, pro-vided that such action shall be reported to the Commission at its next meeting, or (2) file and serve a copy of the grievance (or, in the case of an investigation instituted on the part of the General Counsel or the Commission without the filing of a signed griev-ance, a recital of the relevant facts or allegations) upon the law-yer, who shall thereafter make a written response which contains a full and fair disclosure of all the facts and circumstances per-taining to the respondent lawyer’s alleged misconduct unless the respondent’s refusal to do so is predicated upon expressed con-stitutional grounds. Deliberate misrepresentation in such re-sponse shall itself be grounds for discipline. The failure of a lawyer to answer within twenty (20) days after service of the grievance (or recital of facts or allegations), or such further time as may be granted by the General Counsel, shall be grounds for discipline. The General Counsel shall make such further investi-gation of the grievance and response as the General Counsel may deem appropriate before taking any action.

2. Rule 6.12c, RGDP, provides:c. To warrant a finding against the respondent in a contested case, the charge or charges must be established by clear and convincing evidence, and at least two of the members of the Trial Panel must concur in the findings.

3. Rule 6.2, RGDP:The complaint shall set forth the specific facts constituting

the alleged misconduct, and if prior conduct resulting in disci-pline, or evidence from prior investigations, is relied upon to enhance discipline, the prior acts or conduct relied upon shall be set forth.

4. Rule 1.1. Competence.A lawyer shall provide competent representation to a client.

Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.

5. Rule 1.3. DiligenceA lawyer shall act with reasonable diligence and promptness

in representing a client.6. Rule 1.4. Communication

(a) A lawyer shall:(1) promptly inform the client of any decision or circumstance with respect to which the client’s informed consent, as de-fined in Rule 1.0(e), is required by these Rules;


(2) reasonably consult with the client about the means by which the client’s objectives are to be accomplished;(3) keep the client reasonably informed about the status of the matter;(4) promptly comply with reasonable requests for informa-tion; and(5) consult with the client about any relevant limitation on the lawyer’s conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional conduct or other law.(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

7. Rule 1.5. fees(a) A lawyer shall not make an agreement for, charge or collect

an unreasonable fee or an unreasonable amount for expenses. The factors to be considered in determining the reasonableness of a fee include the following:

(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employ-ment by the lawyer;(3) the fee customarily charged in the locality for similar legal services;(4) the amount involved and the results obtained;(5) the time limitations imposed by the client or by the circum-stances;(6) the nature and length of the professional relationship with the client;(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and(8) whether the fee is fixed or contingent.

(b) The scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation, except when the lawyer will charge a regularly represented client on the same basis or rate. Any changes in the basis or rate of the fee or expenses shall also be communicated to the client.

(c) A fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in which a contin-gent fee is prohibited by paragraph (d) or other law. A contingent fee agreement shall be in writing signed by the client and shall state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal; litigation and other expenses to be deducted from the recovery; and whether such expenses are to be deducted before or after the contingent fee is calculated. The agreement must clearly notify the client of any expenses for which the client will be liable whether or not the client is the prevailing party. Upon conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement stating the outcome of the matter, and, if there is a recovery, showing the remittance to the client and the method of determination. . . .8. Rule 8.4 MisconductIt is professional misconduct for a lawyer to:

(a) violate or attempt to violate the Rules of Professional Con-duct, knowingly assist or induce another to do so, or do so through the acts of another; . . . .9. Gibson agreed that Mirando had represented him several years

and had made 20-23 court appearances on his behalf. The matter at issue was the application to revoke a suspended sentence for child abuse to which he had already pled guilty while represented by another attorney. Mirando defended him on numerous complaints from the probation office, including testing positive for marijuana and missing appoint-ments for employment. He admitted Mirando obtained a psychological evaluation with a doctor and a no-cost inpatient drug treatment for him. Eventually, Gibson confessed to the probation officer and to Mirando of having “a lapse” as to using illegal substances, and the probation officer based her finding of his failing a drug test on his own admission, leading to the court’s revocation of his suspended sentence.

10. The March 22, 2016, order provided, in part:Respondent is ordered to respond to this Court, no later than

April 11, 2016, setting out any defenses or circumstances regarding the latest grievances filed against him. Respondent may also request a hearing before the PRT on the latest charges on or before the above date. If no response is received from Respondent, the complaint shall be deemed amended to include these two latest grievances; the facts shall be deemed admitted and combined with

the prior grievances to consider the appropriate discipline to be imposed by this Court against the Respondent.11. RGDP Rule 6.4 provides:

The respondent shall within twenty (20) days after the mailing of the complaint file an answer with the Chief Justice. The respon-dent may not challenge the complaint by demurrer or motion. In the event the respondent fails to answer, the charges shall be deemed admitted, except that evidence shall be submitted for the purpose of determining the discipline to be imposed.12. The report states at sub-heading 2 of footnote 3, page 16:

Respondent’s failure to maintain a trust account is obviously of great concern to the Panel. However, the Complaint does not allege a violation of Rule 1.15 of the ORPC. More importantly, while rule 6.2 requires only “that the specific facts be set forth, and does not require the lawyer to be notified of the specific disciplinary rule that such conduct violates,” in the Panel’s opinion, the Complaint does not allege any facts putting Respondent on notice he may be disciplined for a violation of Rule 1.15. See State ex rel. OBA v. Eakin, 1995 OK 106, ¶ 15, 914 P.2d 644, 649 (“The fundamentals of due process are applicable in lawyer disciplinary proceedings. The Bar must allege facts sufficient to put the accused lawyer on notice of the charges and afford the respondent ample opportunity to defend against the allegations”). . . .13. As alleged in the Complaint, the Court found Mirando violated

Rule 1.15 ORPC when he was given a private reprimand in 2011.14. Apparently, the PRT refers to rule 8.4c, rather than 8.4(a), which

was raised by the Bar. Rule 8.4c was not raised by the Bar against Mirando, and we see no evidence of misrepresentations.

2016 OK 73

ANDREA ROSA PIZANO, Plaintiff/Appellee, v. LACEY & ASSOCIATES, LLC,

Defendant/Appellant, and WW GROUP, LLC, 5W GROUP, LLC, MARK WILLIAMS,

JONNY WILLIAMS, and JOHN DOE, Defendants, v. EVEREST HOMES, LLC,

Third-Party Defendant.

No. 112,538. June 21, 2016

ON CERTIORARI TO THE COURT Of CIVIL APPEALS, DIVISION IV

¶0 Lacey & Associates, LLC, defendant/appellant, purchased commercial real estate from Everest Homes, LLC, third-party defendant. In addition, Lacey con-tracted with Everest to replace the roof and HVAC units on the building Lacey pur-chased. Everest contracted with the Wil-liams Group, defendants, to do the work, and the Williams Group hired Pizano, plain-tiff/appellee, to remove the roof. When the Williams Group did not pay Pizano, Pizano filed suit and sought to foreclose on Lacey’s property pursuant to subcontractor lien stat-utes. Lacey claimed it received no pre-lien notice as the statutes require. Lacey and Pizano filed motions for summary judg-ment. The trial court granted Pizano’s motion, giving her a judgment in a reduced amount, and denied Lacey’s motion. On appeal, the Court of Civil Appeals reversed the trial court’s determination that 41 O.S.2011, § 142.6 requires subcontractors to


file a pre-lien notice. This Court granted certiorari to review this case.

CERTIORARI PREVIOUSLY GRANTED; OPINION Of THE COURT Of CIVIL

APPEALS IS VACATED; JUDGMENT Of THE DISTRICT COURT IS AffIRMED AND THE CASE IS REMANDED TO

THAT COURT.

Ryan S. Wilson, HARTZOG CONGER CASON & NEVILLE, Oklahoma City, Oklahoma; Attor-ney for Appellant.

Patrick H. Lane, Jack S. Dawson, MILLER DOLLARHIDE, P.C., Oklahoma City, Oklaho-ma; Attorneys for Appellee.

WINCHESTER, J.

¶1 The issue is whether Andrea Rosa Pizano, plaintiff/appellee, was required to file a pre-lien notice pursuant to 42 O.S.2011, § 142.6, to perfect her mechanic’s lien against the real property owned by Lacey & Associates, LLC, defendant/appellant.

I. FACTS AND PROCEDURE

¶2 In 2012, Lacey & Associates, LLC, (Lacey), contracted with Everest Homes, LLC, (Ever-est), to purchase a commercial building. In addition, Lacey and Everest executed an escrow agreement on October 5, 2012, for the release of additional funds to Everest if the roof was replaced after title had transferred to Lacey. After title passed to Lacey, Everest entered into a contract with the Williams Group, a contrac-tor, to replace the roof. The Williams Group then hired Andrea Rosa Pizano, (Pizano) to remove the old roof and HVAC units, which service she performed. On March 26, 2013, Pizano sued alleging the Williams Group did not pay the contractual amount of $11,085, as agreed by the two parties. She filed a mechan-ic’s lien on Lacey’s building one day before she filed her petition. The lawsuit sought judgment against the Williams Group in the amount of $11,085, plus interest. The Williams Group never filed an answer. The trial court thereafter entered a default judgment against the Wil-liams Group on August 6, 2013, awarding Piz-ano $11,085, an attorney’s fee of $2,500.00 and court costs of $461.81. Pizano then sought to foreclose her lien against Lacey and be award-ed court costs and attorney fees.

¶3 On October 29, 2013,1 Pizano moved for summary judgment against Lacey, based on her judgment against the Williams Group. She

asserted the judgment entitled her to foreclose the lien claimed against the building and premises owned by Lacey. She requested that the property be sold to satisfy the judgment.

¶4 Lacey and Associates, LLC, answered and included a “Cross-motion for Summary Judg-ment.” The company responded that the new roof leaked so badly that large barrels had to be placed inside the building to catch the water. Therefore, no party was entitled to be paid for the roof. Lacey also asserted that Pizano’s motion should be denied because Lacey had no contract with Pizano, and also that the plaintiff failed to file the required pre-lien notice pursu-ant to 42 O.S.2011, § 142.6.2

¶5 Pizano replied that because her work included only removing and disposing of the old roof, the roof’s present condition was irrel-evant to her lawsuit for foreclosure. She argued that 42 O.S.2011, § 142.6 did not require her to file a pre-lien notice because she did not fit the description of “Claimant” as defined in that statute.

¶6 On January 15, 2014, the trial court found there were no disputed material facts. It grant-ed Pizano’s summary judgment motion in part, and denied Lacey’s counter-motion for summary judgment. The court found that § 142.6 required Pizano to provide pre-lien notice, and because she did not give notice, she was not entitled to a lien in the entire principal amount of her claim, that is, $11,085.00. The order continued that Pizano’s failure to provide such notice nevertheless entitled her to a reduced judgment amount of $9,999.00, pursuant to 42 O.S.2011, § 142.6(B)(3)(b). The trial court ordered Lacey to pay that reduced amount, as well as attorneys’ fees and costs to Pizano in the amount of $10,766.18. Lacey appealed and Pizano coun-ter-appealed. On March 23, 2015, the Court of Civil Appeals, Division IV, held that Pizano successfully preserved her subcontractor’s lien, but found that genuine disputes of fact remained as to the amount owed to Pizano and the enforceability of the lien. The Court of Civil Appeals reversed and remanded the case for further proceedings.

II. ANALYSIS OF THE RELEVANT STATUTES

¶7 In its petition for writ of certiorari, Lacey argues that the Court of Civil Appeals erred in holding that subcontractors are not required to give a pre-lien notice to property owners in


order to assert their lien status. This issue has never been decided by this Court.

¶8 The requirement for a pre-lien notice is found in 42 O.S.2011, § 142.6. Section 142.6 requires a subcontractor to file a pre-lien notice only if that person fits within the definition of a “Claimant” found in subsection (A)(1) and (A)(2) of that statute. A “Claimant” is a “Per-son,” other than an original contractor, who is entitled to a lien pursuant to 42 O.S.2011, § 141.3 Section 141 provides in pertinent part,

“Any person who shall, under oral or writ-ten contract with the owner of any tract or piece of land, perform labor . . . on said land for the erection, alteration or repair of any building, improvement or structure thereon . . . shall have a lien upon the whole of said tract or piece of land, the buildings and appurtenances. If the title to the land is not in the person with whom such contract was made, the lien shall be allowed on the buildings and improvements on such land separately from the real estate.” [Emphasis added.]

For Lacey to be entitled to pre-lien notice, Piz-ano must be entitled to a lien pursuant to 42 O.S.2011, § 141. Pizano falls within the defini-tion of “Claimant” because under § 141, she is a person, who is not the original contractor, and she did not have a contract with the owner of the property, Lacey & Associates, LLC. Had she filed a pre-lien notice § 141 would restrict Pizano’s right to a lien only against the buildings and improvements of the property separately from the real estate, because she contracted with the Williams Group to perform labor, and that entity was not the owner of the land.

¶9 Lacey cites Jones v. Purcell Investments, 2010 OK CIV APP 15, 231 P.3d 706, to demon-strate the conflict between Division IV and Division I of the Court of Civil Appeals. The issue in the Jones case involved the timing of the required pre-lien notice pursuant to § 142.6(B).4

Division IV observed that the Jones court as-sumed that a pre-lien notice was required by a subcontractor under that statute, without analy-sis of the validity of that assumption. But that assumption is based on sound reasoning.

¶10 The Jones court identified the policy behind a pre-lien notice: “Oklahoma law pro-tects property owners by requiring subcon-tractors to give owners notice of mechanics’ liens, which allows owners to withhold pay-ment to the general contractor until they are

sure the subcontractor will be paid by the general contractor.”5

¶11 Pursuant to § 142.6, a claimant is required to send the original contractor and the owner of the property pre-lien notice, prior to filing a lien statement under § 143.1,6 but no later than 75 days after the last date of the supply of materials, services, or labor. Today’s holding, that the statutes cited above do require § 142.6(A)(1) claimants to file a pre-lien notice, has been anticipated in Jones, and 5A Vernon’s Okla. Forms 2d, Real Estate 12.3 (2012 ed.), which states:

“Pursuant to the specific and/or incorpo-rating language of § 142.6 regarding §§ 141, 142 and 143, the prerequisites of § 142.6 seemingly applies to original contractors, laborers and materialmen, and subcontrac-tors. Oklahoma decisional law specifically applies prelien notice requirements of § 142.6 to subcontractors.”

Volume 9 Okla. Prac., Construction Law § 6:6 (2014 ed.), regarding § 142.6 agrees:

“Section 142.6 imposes a pre-lien notice requirement on persons ‘other than an original contractor.’ The pre-lien notice must be filed prior to the filing of the lien statement, but no later than 75 days after the last date of supply of material, services, labor or equipment in which the claimant is entitled to lien rights.” [Emphasis in original; foot-notes omitted.]

¶12 Because § 141 applies to Pizano, then § 142.6 applies as well. Section 142.6(B) explicitly specifies that the requirements within that stat-ute apply before filing § 143.1 lien statements. “Prior to the filing of a lien statement pursuant to Section 143.1 of this title … the claimant shall send to the last known address of the original contractor and an owner of the prop-erty a pre-lien notice pursuant to the provi-sions of this section.” 42 O.S. 2011, § 142.6(B).

¶13 The exception to the pre-lien require-ment provided in 42 O.S.2011, § 142.6(A)(3)(b), allows a lien claim to be enforced without a pre-lien notice for claims when the aggregate amount of the claim is less than $10,000. Under subsection D, “[f]ailure by the claimant to com-ply with the pre-lien notice requirements of this section shall render that portion of the lien claim for which no notice was sent invalid and unenforceable.” 42 O.S.2011, § 142.6(D). Piza-no’s claim exceeded $10,000.


¶14 We can infer from the exception cited in the above paragraph that the Legislature in-tended amounts less than $10,000 to be exempt from pre-lien notice. Having provided such an exception, the wording persuades this Court that if a claimant filed a claim of $10,085 without a pre-claim notice, the claim would be enforce-able up to $9,999. We do not believe that the claim would be completely unenforceable if it exceeded that legislatively-approved amount by a mere $86.

¶15 The judgment of the trial court finding that Pizano failed to file pre-lien notice as required by law is affirmed. The trial court’s order entitling her to a reduced judgment amount of $9,999.00 and an award of attorneys’ fees and costs is affirmed. This case is remanded to the trial court to issue a judgment consistent with the law as expressed within this opinion.

CERTIORARI PREVIOUSLY GRANTED; OPINION Of THE COURT Of CIVIL

APPEALS IS VACATED; JUDGMENT Of THE DISTRICT COURT IS AffIRMED

AND THE CASE IS REMANDED TO THAT COURT.

CONCUR: REIF, C. J., COMBS, V.C.J., KAUGER, WATT, WINCHESTER, EDMONDSON, TAY-LOR, and GURICH, JJ.

DISSENT: COLBERT, J.

WINCHESTER, J.

1. The document is entitled “Plaintiff’s Corrected Motion for Sum-mary Judgment and Brief in Support.”

2. 42 O.S.2011, § 142.6:A. For the purposes of this section:1. “Claimant” means a person, other than an original contractor, that is entitled or may be entitled to a lien pursuant to Section 141 of this title; and2. “Person” means any individual, corporation, partnership, unincorporated association, or other entity.B. 1. Prior to the filing of a lien statement pursuant to Section 143.1 of this title, but no later than seventy-five (75) days after the last date of supply of material, services, labor, or equipment in which the claimant is entitled or may be entitled to lien rights, the claimant shall send to the last-known address of the original contractor and an owner of the property a pre-lien notice pursu-ant to the provisions of this section. Provided further, no lien affecting property then occupied as a dwelling by an owner shall be valid unless the pre-lien notice provided in this section was sent within seventy-five (75) days of the last furnishing of mate-rials, services, labor or equipment by the claimant.2. The provisions of this section shall not be construed to require:a. a pre-lien notice with respect to any retainage held by agree-ment between an owner, contractor, or subcontractor, orb. more than one pre-lien notice during the course of a construc-tion project in which material, services, labor, or equipment is furnished.A pre-lien notice sent in compliance with this section for the sup-ply of material, services, labor, or equipment that entitles or may entitle a claimant to lien rights shall protect the claimant’s lien rights for any subsequent supply of material, services, labor, or equipment furnished during the course of a construction project.3. Except as otherwise required in paragraph 1 of this subsection, the pre-lien notice requirements shall not apply to a claimant:

a. whose claim relates to the supply of material, services, labor, or equipment furnished in connection with a residential project. For the purposes of this subparagraph, the term “residential” shall mean a single family or multifamily project of four or fewer dwelling units, none of which are occupied by an owner, orb. whose aggregate claim is less than Ten Thousand Dollars ($10,000.00).4. The pre-lien notice shall be in writing and shall contain, but not be limited to, the following:a. a statement that the notice is a pre-lien notice,b. the complete name, address, and telephone number of the claimant, or the claimant’s representative,c. the date of supply of material, services, labor, or equipment,d. a description of the material, services, labor, or equipment,e. the name and last-known address of the person who requested that the claimant provide the material, services, labor, or equipment,f. the address, legal description, or location of the property to which the material, services, labor, or equipment has been supplied,g. a statement of the dollar amount of the material, services, labor, or equipment furnished or to be furnished, andh. the signature of the claimant, or the claimant’s representative.5. A rebuttable presumption of compliance with paragraph 1 of this subsection shall be created if the pre-lien notice is sent as follows:a. hand delivery supported by a delivery confirmation receipt,b. automated transaction pursuant to Section 15-115 of Title 12A of the Oklahoma Statutes, orc. certified mail, return receipt requested. Notice by certified mail, return receipt requested, shall be effective on the date mailed.6. The claimant may request in writing, the request to be sent in the manner as provided in paragraph 5 of this subsection, that the original contractor provide to the claimant the name and last-known address of an owner of the property. Failure of the origi-nal contractor to provide the claimant with the information requested within five (5) days from the date of receipt of the request shall render the pre-lien notice requirement to the owner of the property unenforceable.C. At the time of the filing of the lien statement, the claimant shall furnish to the county clerk a notarized affidavit verifying compliance with the pre-lien notice requirements of this section. Any claimant who falsifies the affidavit shall be guilty of a mis-demeanor, and upon conviction thereof may be punished by a fine of not more than Five Thousand Dollars ($5,000.00), or by imprisonment in the county jail for not more than thirty (30) days, or by both such fine and imprisonment.D. Failure of the claimant to comply with the pre-lien notice requirements of this section shall render that portion of the lien claim for which no notice was sent invalid and unenforceable.

3. Title 42 O.S.2011, § 141 as amended by 2013 Okla.Sess.Laws, ch. 78, § 1 added the underlined wording:

“Any person who shall, under oral or written contract with the owner of any tract or piece of land, perform labor, furnish mate-rial or lease or rent equipment used on said land for the erection, alteration or repair of any building, improvement or structure thereon or perform labor in putting up any fixtures, machinery in, or attachment to, any such building, structure or improve-ments; or who shall plant any tree, vines, plants or hedge in or upon such land; or who shall build, alter, repair or furnish labor, material or lease or rent equipment used on said land for build-ings, altering, or repairing any fence or footwalk in or upon said land, or any sidewalk in any street abutting such land, shall have a lien upon the whole of said tract or piece of land, the buildings and appurtenances in an amount inclusive of all sums owed to the person at the time of the lien filing, including, without limita-tion, applicable profit and overhead costs. If the title to the land is not in the person with whom such contract was made, the lien shall be allowed on the buildings and improvements on such land separately from the real estate. Such liens shall be preferred to all other liens or encumbrances which may attach to or upon such land, buildings or improvements or either of them subse-quent to the commencement of such building, the furnishing or putting up of such fixtures or machinery, the planting of such trees, vines, plants or hedges, the building of such fence, footwalk or sidewalks, or the making of any such repairs or improvements; and such lien shall follow said property and each and every part thereof, and be enforceable against the said property wherever the same may be found, and compliance with the provisions of this act shall constitute constructive notice of the claimant’s lien to all purchasers and encumbrancers of said property or any part there-


of, subsequent to the date of the furnishing of the first item of material or the date of the performance of the first labor or the first use of the rental equipment on said land.”

4. The Jones court construed 42 O.S.2001, § 142.6(B), which con-tained an ambiguity concerning whether the pre-lien notice required by the statute must be sent no later than 75 days after the first or last date materials or labor were supplied. That court held that the time began to run after the last date materials or labor were supplied. The Legislature subsequently amended the statute to confirm that holding. The amendment is now codified at 42 O.S.2011, § 142.6(B).

5. W.E. Caldwell Co. v. John Williams-Taylor Co., 1915 OK 1117, 50 Okla. 798, 150 P. 698, 699-700.

6. 42 O.S.2011, § 143.1:A. Within five (5) business days after the date of the filing of the lien statement provided for in Sections 142 and 143 of this title, a notice of the lien shall be mailed by certified mail, return receipt requested, to the owner of the property on which the lien attach-es. The claimant shall furnish to the county clerk the last-known mailing address of the person or persons against whom the claim is made and the owner of the property. The notice shall be mailed by the county clerk. The fee for preparing and mailing the notice of mechanics’ and materialmen’s lien and costs for each addi-tional page or exhibit shall be as provided for in Section 32 of Title 28 of the Oklahoma Statutes and shall be paid by the person filing the lien. The fee shall be deposited into the County Clerk’s Lien Fee Account, created pursuant to the provisions of Section 265 of Title 19 of the Oklahoma Statutes.B. The notice shall contain the date of filing; the name and address of the following: The person claiming the lien; the per-son against whom the claim is made and the owner of the prop-erty; a legal description of the property; and the amount claimed. Provided that, if with due diligence the person against whom the claim is made or the owner of the property cannot be found, the claimant after filing an affidavit setting forth such facts may, within sixty (60) days of the filing of the lien statement, serve a copy of the notice upon the occupant of the property or the occu-pant of the improvements, as the case may be, in a like manner as is provided for service upon the owner thereof, or, if the same be unoccupied, the claimant may post a copy in a conspicuous place upon the property or any improvements thereon.

2016 OK 74

Misty Darlene Tiger, individually and as Administrator of the Estate of Jason Lee Tiger, deceased; J.L.T., a minor child; and

B.L.T., a minor child, by and through their natural mother and next friend, Misty

Darlene Tiger, Appellants, v. Verdigris Valley Electric Cooperative, an Oklahoma not for

profit cooperative, Appellee, and Integrated Service Company LLC, d/b/a INSERV, an

Oklahoma limited liability company, Defendant.

No. 112,777. June 21, 2016

CERTIORARI TO THE COURT OF CIVIL APPEALS

Division I

¶0 Widow and children of deceased work-er brought an action pursuant to Parret v. UNICCO Service Co., 2005 OK 54, 127 P.3d 572, asserting that decedent’s employer knew that injury or death was substantially certain to result from the task decedent and his coworkers were directed to complete and the conditions in which they were required to work. The District Court, Hon-orable Dwayne Steidley, denied the em-

ployer’s motion for summary judgment but granted a second motion for summary judgment after additional discovery. The Court of Civil Appeals affirmed.

CERTIORARI PREVIOUSLY GRANTED; OPINION OF COURT OF CIVIL APPEALS VACATED; DISTRICT COURT REVERSED;

CAUSE REMANDED.

Bryce A. Hill, Law Office of Bryce A. Hill, Tulsa, Oklahoma; and Jack G. Zurawik, The Zurawik Law Firm, Tulsa, Oklahoma, for Appellants.

Richard A. Gann, Stephen B. Riley, Thomas M. Askew, Stephanie L. Theban, Riggs, Abney, Neal, Turpen, Orbison & Lewis, Tulsa, Okla-homa, for Appellee.

COLBERT, J.

¶1 The issue in this matter is whether sum-mary judgment was properly granted to decedent’s employer pursuant to Parret v. UNICCO Service Co., 2005 OK 54, 127 P.3d 572. Because material issues of fact remain in dispute, this cause must be remanded to the trial court for proceedings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

¶2 On January 9, 2008, a field engineer for Verdigris Valley Electric Cooperative (Employ-er) met with a contract electrician for Integrated Service Company LLC (INSERV) in Catoosa, Oklahoma, concerning the installation of addi-tional underground electrical service. They dis-cussed the location of the additional service to the building and decided to use an existing junction box which the engineer observed was surrounded by a yellow metal barricade. He would later note: “I normally recommend that our members [customers] install a protective post an [sic] each corner of a pad mounted device in high traffic areas such as the INSERV plant, to help protect from getting ran [sic] over by vehicles or other equipment. I would never suggest having a barrier of any kind in front of any opening or door on VVEC equipment.”

¶3 On June 5, 2008, a work crew from Em-ployer was dispatched to install additional underground electrical service to INSERV. The four-man crew consisted of Jones, Jackson, Day, and Tiger. Jones and Jackson were jour-neymen electricians and Jones was the fore-man. Day and Tiger were apprentices. Tiger had been in the journeyman apprentice pro-


gram for approximately nine months of a four-year program. At the time of his death, Tiger had been certified only in the climbing school portion of his journeyman training. Day had worked for Employer only one month.

¶4 To provide the additional electric service to INSERV, the work crew would install three underground cables from a junction box to a transformer located on INSERV’s premises. Employer, through its employees, decided the system would remain energized with high voltage electricity so that customers would not be inconvenienced by an interruption in elec-trical service. The existing junction box was energized with nominal 14,000/24,900 volts that would then transfer that high voltage elec-tricity to the new service transformer and con-vert (“step down”) the electricity into a much lower useable voltage which could be used by INSERV to run equipment.

¶5 When the crew arrived at the work site, they found the junction box surrounded by a yellow painted steel barricade, erected pre-sumably to protect it from being struck by vehicles or trailers. The record does not estab-lish who erected or owned the barricade, but Employer owned the junction box and associ-ated electrical equipment. Affixed to the junc-tion box was a warning concerning hazardous voltage and underground power cables and a notice from Employer which stated: “We need room to work safely on this device. Please keep shrubs and structures 10 feet away from the side with doors and 3 feet from the other sides. Obstructions may be damaged or removed during service restoration or maintenance.” Employer had attached such stickers to its equipment for several years preceding Tiger’s electrocution.

¶6 The barricade consisted of four corner posts with two rails connecting each post. The barricade did not satisfy the set back require-ments of Employer’s notice to keep structures ten feet away from the door and three feet away from the other sides. It also did not sat-isfy the set back requirements of the Occupa-tional Safety and Health Administration (OSHA), the National Electric Safety Code, and the Oklahoma Administrative Code, which adopted the 2002 edition of the National Elec-tric Safety Code. The space between the junc-tion box and the metal barricade was six and one half inches at the left side, eight inches at the right side, and eleven inches at the back. The height of the top rail varied from thirty-

seven to forty-six inches. Most importantly, only nineteen inches separated the front of the junction box and the metal barricade. Employ-er’s work crews understood that if an obstruc-tion needed to be removed, they had the authority to do so. The foreman of the work crew would later explain that he viewed the barricade as a “hindrance” rather than a safety issue and did not remove the barricade or cut the flow of electricity to the junction box. How-ever, the “Job Briefing Form,” which was signed by the foreman and initialed by each of the work crew “to document hazard recogni-tion and work procedures,” documented the work crew’s full knowledge that they would “work in [a] hot cabinet” and that the installa-tion would require “hard hats, safety glasses, rubber gloves, [and an insulated] blanket.”

¶7 Each of the three cables installed to con-nect the junction box with the transformer would comprise the three phase service (phas-es A, B, and C). They would be capped off by installing connections that would operate as a “plug” to be inserted into its own bushing located within the junction box and within the transformer. This would permit electricity to flow from an overhead line into the junction box and into the INSERV transformer. An eight-foot long insulated rod known as a “shot-gun stick” would be used to push the plug into the the opening of the bushing on the junction box while another crew member wearing insu-lated gloves would guide the connection. This process was to be repeated for each of the three cables.

¶8 The work crew began its installation by pulling wire through the underground conduit that had been placed between the transformer and the junction box. They then attached con-nectors to the ends of the phase wires and seated those connectors into bushings on the transformer rather than placing the connectors in “parking stands”1 to be seated later, after the junction box end of the wires had been fitted with connectors and seated into bushings with-in the junction box. The crew then took thirty minutes for lunch. Connections were installed on the junction box end of each cable. Jackson used the shotgun stick from a position outside the barricade to successfully insert cable “A” into the bushing on the junction box while Tiger leaned over the barricade using the insu-lated gloves to guide the connection.

¶9 Jackson then attached the shotgun stick to cable “B” while Tiger attempted to approxi-


mate the connection for that cable. However, the steel barricade was so close to the junction box that there were only nineteen inches of clearance between the barricade and the front work area of the junction box. After numerous attempts, to seat the phase B connector into the designated bushing of the junction box, it was determined that the task could not be accom-plished from outside the steel barricade. With no admonition or warning from the crew fore-man Jones, journeyman Jackson, or any other member of the work crew, Tiger climbed over the barricade to position his six feet two inches 200 pound frame inside the nineteen inches of space between the junction box and the steel barricade to assist in lining up the B phase con-nector with the bushing of the junction box so that it could be seated. As Jackson was making the connection, Tiger stepped back from Phase B, made contact with phase C, and screamed. He then appeared to freeze and not move. Within two to three seconds, Jones realized that Tiger was being shocked. Jones retrieved the “extendo stick” from the truck and ran an esti-mated 200 to 500 feet to the utility pole where the fuses were located to turn off the power. It took an estimated one to three minutes to pull the three fuses to interrupt the flow of high voltage electricity passing through Tiger’s body. After the power was cut, the work crew pulled Tiger from the barricade. Resuscitation efforts failed and Tiger was pronounced dead at a local hospital.

¶10 Subsequent investigation into the cause of Tiger’s electrocution revealed that, when Phase A was connected to the junction box, it energized the core of the transformer which then allowed “back feed” to the unconnected Phases B and C at the junction box. The parties would later dispute the role of the barricade in the electrocution. The United States Depart-ment of Labor, Occupational Safety and Health Administration, issued a citation for two “seri-ous” safety violations. Under OSHA, “the word serious as used in serious hazard, serious violation or serious condition means a hazard, violation or condition such that there is a sub-stantial probability that death or serious physi-cal harm could result.” 29 C.F.R. § 1960.2(v). The citation provided:

Citation 1 Item 1 Type of Violation: Serious

29 CFR 1910.269(a)(2)(iv)(B): Employees did not receive additional training where new types of equipment and changes in procedures necessitated the use of equip-

ment that were different from those which the employee(s) would normally use.

On or about June 5, 2008, at the work site, employer did not train employee adequately on procedures of safety-related work prac-tices that were different from those normally used, exposing employee to the hazards of electrocution by coming in contact with live parts while working inside of metal enclosed fence or barricade.

Citation 1 Item 2 Type of Violation: Serious

29 CFR 1910.269(c): Employer shall ensure that the employee(s) in charge conducts a job briefing with the employees involved before the start of each job.

On or about June 5, 2008, at the work site, employer did not brief employee on haz-ards associated with the job, work proce-dures involved, special precautions, energy source controls, and personal protective equipment requirements, such as, rubber insulating blanket and other additional per-sonal protection equipment (PPE) exposing employee to the hazards of electrocution by coming in contact with live parts while inside of a metal enclosed/barricade.

OSHA ordered abatement of the violations and assessed a proposed penalty.

¶11 This action was brought in the District Court against Employer and INSERV on June 3, 2009. It alleged that Employer’s choice to direct the work crew to install new service with a steel barricade located within nineteen inches of a high-voltage junction box demonstrated Employer’s substantial certainty that serious injury or death to a worker would result. IN-SERV was dismissed from the action with prejudice on December 17, 2010. Employer moved for summary judgment in July, 2011. The trial court denied the motion, noting a list of facts to support an inference of Employer’s knowledge of a substantial certainty that injury or death would result from its conduct.

¶12 Following the deposition of Plaintiffs’ expert, Employer filed a second motion it termed a “Post-Discovery Motion for Summa-ry Judgment.” It emphasized Employer’s safe-ty record and the lack of dispute that Employer is a “safety-oriented” company. The trial court noted that members of the work crew had been trained concerning back-feed but had forgotten their training and therefore failed to apply it.


The trial court further emphasized that, under company policy, Employer and its employees are “jointly responsible for safety.” It conclud-ed Employer was not aware of its “employee training deficiencies” until after Tiger’s death. The motion was granted and the Court of Civil Appeals affirmed. This Court granted certio-rari review.

STANDARD OF REVIEW

¶13 The appellate standard of review of a summary judgment is de novo. Kirkpatrick v. Chrysler Corp., 1996 OK 136, ¶ 2, 920 P.2d 122, 124. The evidentiary materials will be exam-ined to determine what facts are material and whether there is a substantial controversy as to any material fact. See Sperling v. Marler, 1998 OK 81, 963 P.2d 577; Malson v. Palmer Broad. Grp., 1997 OK 42, 936 P.2d 940. All inferences and conclusions to be drawn from the materi-als must be viewed in a light most favorable to the nonmoving party. Carmichael v. Beller, 1996 OK 48, ¶ 2, 914 P.2d 1051, 1053. Even when the facts are not controverted, if reason-able persons may draw different conclusions from the facts summary judgment must be denied. Bird v. Coleman, 1997 OK 44, ¶ 20, 939 P.2d 1123, 1127. Summary judgment is proper only if the record reveals uncontroverted mate-rial facts failing to support any legitimate infer-ence in favor of the nonmoving party. N.C. Corff P’ship, Ltd. v. OXY USA, Inc., 1996 OK CIV APP 92, ¶ 8, 929 P.2d 288, 292. When genu-ine issues of material fact exist, summary judg-ment should be denied and the question becomes one for determination by the trier of fact. Brown v. Okla. State Bank & Trust Co., 1993 OK 117, ¶ 7, 860 P.2d 230, 233. Because the trial court has the limited role of determin-ing whether there are such issues of fact, it may not determine fact issues on a motion for summary judgment nor may it weigh the evi-dence. Stuckey v. Young Exp. Co., 1978 OK 128, ¶ 15, 586 P.2d 726, 730.

ANALYSIS

¶14 Because the incident that gave rise to this action occurred in 2008, the applicable law is found in this Court’s pronouncement in Parret v. UNNICO, 2005 OK 54, 127 P.3d 572.2 There, this Court determined the standard for when an employer’s conduct is intentional therefore placing the employee’s claim for injury or death outside the exclusive remedy provision of the Workers’ Compensation Act. The Parret holding is summarized well by the comment to

Oklahoma Uniform Jury Instruction (Civil) 6.16 which explains:

In order for an employer’s conduct to amount to an intentional tort, the employer must have (1) desired to bring about the worker’s injury or (2) acted with the knowl-edge that such injury was substantially certain to result from the employer’s con-duct. Under the second part of this stan-dard, the employer must have intended the act that caused the injury with knowledge that the injury was substantially certain to follow. The issue is not merely whether injury was substantially certain to occur, but whether the employer knew it was sub-stantially certain to occur. The employer’s subjective appreciation of the substantial certainty of injury must be demonstrated. In most cases, however, it will be necessary to demonstrate the employer’s subjective real-ization by circumstantial evidence. Thus, an employer’s knowledge may be inferred from the employer’s conduct and all the sur-rounding circumstances.

(Emphasis added).

¶15 Parret examined the policy considera-tions underlying the substantial certainty stan-dard and noted that it was designed for:

[t]he difficult case . . . where the employer [is] not motivated by a desire to harm employees, but certainly tak[es] a calculat-ed risk with their lives and safety — and perhaps takes all the greater risk because the employer knows that when injury inev-itably does occur, the cost will be less because of the exclusive remedy and limit-ed compensation provisions of the work-ers’ compensation act.

2005 OK 54, ¶ 22, (quoting 7 Causes of Action 2d 197, § 2 at 204). In determining whether this matter presents such a difficult case, the ques-tion becomes whether Employer’s conduct and the surrounding circumstances support an inference of Employer’s substantial certainty that injury or death to a worker would result from its conduct.

¶16 The lower courts held, as a matter of law, Employer’s knowledge concerning the condi-tion of the work site or the actions of its work crew did not demonstrate its substantial cer-tainty that a worker would be injured or killed. That conclusion failed to consider that the knowledge or notice possessed by an


agent while acting within the scope of author-ity is the knowledge of, or notice to the princi-pal. Bailey v. Gulf Ins. Co., 389 F.2d 889, 891 (10th Cir. 1968). Thus, the lower courts’ empha-sis on the fact Employer was generally a “safe-ty minded” organization and its safety record was good overall, was entirely misplaced. Similarly, the trial court’s emphasis on the “joint responsibility” between Employer and its employees for workplace safety found in the company policy manual does not control this matter. See Graham v. Keuchel, 1993 OK 6, ¶ 52, 847 P.2d 342 (claim for intentional tort is not subject to defense of contributory or com-parative negligence).

¶17 This matter presents facts very similar to those found in Parret. There, an electrical worker was directed to work on emergency lights while they remained energized. The worker was electrocuted and died as a result. This Court adopted the substantial certainty standard in response to a federal certified ques-tion and explained the standard’s parameters and underlying policy considerations. In this matter, the foreman and the other journeyman electrician instructed one apprentice, Day, to move far away from the barricade. The other apprentice, Tiger — who had no experience or training in high voltage installation — was allowed to take on the most dangerous task at the work site by crawling over a metal barri-cade without an insulated blanket in an attempt to connect cables to a junction box energized with high voltage electricity with insufficient clearance.

¶18 Employer, through its employees, made several fateful decisions from which a jury could at least infer Employer’s substantial cer-tainty that at least one member of its work crew would be injured or killed as a result of its conduct or omissions. Those decisions began with the conduct of Employer’s field engineer who sets out the policy and procedure for com-pleting a project and who discussed with INSERV the options for the location of addi-tional electric service. At that time, the engi-neer noticed the yellow metal barricade sur-rounding the junction box. Although he would later state that he would never recommend such a barricade, he did nothing to cause the work crew to modify or remove the illegal obstruction. Such conduct went beyond reck-less disregard and deliberate indifference. It indicates Employer’s substantial certainty that someone would be injured or killed by enter-

ing the steel barricade with less than nineteen inches from the barricade and the door of the junction box.

¶19 Those decisions continued with those of the work crew foreman, Jones, who acted as Employer’s on-site policy maker concerning safety and apprentice training. Those decisions regarding safety, supervision, and apprentice training imply Employer’s substantial certain-ty that serious injury or death would result from its conduct. They include: (1) not cutting the power and therefore placing the conve-nience of its customers over the safety of its employees; (2) not using the parking stands provided on the transformer and junction box; (3) not removing the illegal metal barricade or at least the front of the barricade; (4) not plac-ing safety blankets over the metal barricade; and (5) allowing a six foot two, two hundred pound apprentice to assume the most danger-ous position for installation of the high-voltage electrical service and enter the insufficient space between the high voltage junction box and the illegal barricade.

¶20 The record before this Court demon-strates overwhelming issues of material fact in dispute making summary judgment inappro-priate. Those include Tiger’s understanding of electricity and his experience installing high-voltage electric service. It is also unclear wheth-er Tiger and Employer’s work crew were required to work on the electrical system while it was “hot” and whether, under the circum-stances, serious injury or death was substan-tially certain to occur. The parties disagree whether Employer’s conduct rose to the level of intent necessary to maintain an action in tort notwithstanding the exclusive remedy provi-sion of the Workers’ Compensation Act.

CONCLUSION

¶21 The central question of fact, which was present throughout this litigation, is whether there is at least an inference from the facts and circumstances surrounding this incident that Employer was substantially certain a worker could be injured or killed by working on elec-trical cables within a steel barricade with only nineteen inches of clearance between it and the high-voltage junction box contrary to OSHA rules,3 the electrical code, state law, and Em-ployer’s own warning sticker. That question is one for the trier of fact on remand.

CERTIORARI PREVIOUSLY GRANTED; OPINION OF COURT OF CIVIL APPEALS


VACATED; DISTRICT COURT REVERSED; CAUSE REMANDED.

CONCUR: Reif, C.J., Watt, Edmondson, Col-bert,, and Gurich, JJ.

CONCURS BY REASON OF STARE DECISIS: Kauger, J.

DISSENT: Combs, V.C.J., Winchester, and Tay-lor, JJ.

COLBERT, J.

1. “Parking” each phase means inserting the connections at the transformer or junction box into an insulated bushing known as a parking stand, which would prevent the flow of electric power to the transformer or junction box until all of the phases in the junction box have been connected.

2. The Parret standard was adopted in 2005. It was superseded by the Oklahoma Legislature’s revisions to the Workers’ Compensation Act in 2010. 2010 Okla. Sess.Laws chap.452 § 3. Those revisions includ-ed the amendment to section 12 of the Act which made “specific intent” to injure the operative test by providing:

An intentional tort shall exist only when the employee is injured as a result of willful, deliberate, specific intent of the employer to cause such injury. Allegations or proof that the employer had knowledge that such injury was substantially certain to result from its conduct shall not constitute an intentional tort. The issue of whether an act is an intentional tort shall be a question of law for the Court. . . .

Okla. Stat. tit. 85, § 12 (Supp. 2010)(eff. August 27, 2010). The same definition of intentional tort was carried forward in 2011 when the Oklahoma Legislature repealed section 12 and inserted the definition into section 302. Okla Stat. tit.85, § 302(B)(Supp. 2011). The same defini-tion of intentional tort appears in the Administrative Workers’ Com-pensation Act which became effective February 1, 2014. Okla Stat. tit. 85A, §5(B)(2) (Supp. 2014). Therefore, for any injury occurring after August 26, 2010, the substantial certainty standard is unavailable to an injured worker.

3. Concerning the OSHA “serious violations” issued against Employer, these violations do not alone conclusively establish Employ-er’s substantial certainty of injury or death. They do, however, consti-tute circumstantial evidence of that intent.

2016 OK 75

STATE Of OKLAHOMA, ex rel. OKLAHOMA BAR ASSOCIATION,

Complainant, v. DAVID BRUCE AUER, Respondent.

SCBD No. 6213. June 28, 2016

ORIGINAL PROCEEDING fOR ATTORNEY DISCIPLINE PURSUANT TO

RULE 7.7, RULES GOVERNING DISCIPLINARY PROCEEDINGS

¶0 Respondent David Bruce Auer was dis-barred by the Supreme Court of Colorado for practicing law in that state without a license. Under the reciprocal discipline provisions of Rule 7.7, Rules Governing Disciplinary Proceedings (RGDP), we find Respondent engaged in the unauthorized practice of law in Colorado and that he should be disbarred from the practice of law in Oklahoma.

RESPONDENT DISBARRED; COSTS IMPOSED; COMPLIANCE WITH RULES

9.1, 11.1(b), RGDP, ORDERED.

Katherine M. Ogden, Assistant General Coun-sel, Oklahoma Bar Association, Oklahoma City, Oklahoma, for Complainant,

Richard W. Walden, Tulsa, Oklahoma, for Respondent.

OPINION

WATT, Justice:

¶1 This disciplinary proceeding considers the allegations of attorney misconduct by Respondent, David Bruce Auer. After consider-ation of the evidence presented, we find that disbarment is the appropriate discipline.

PROCEDURAL AND FACTUAL BACKGROUND

¶2 The Oklahoma Bar Association (Com-plainant) advised this Court on December 5, 2014, pursuant to Rule 7.7, Rules Governing Disciplinary Proceedings, (RGDP),1 5 O.S. Supp. 2014, Ch. 1, app. 1-A, previously 5 O.S. 2011, Ch. 1, app. 1-A,2 that Respondent David Bruce Auer was disbarred from the practice of law by the Supreme Court, State of Colorado, pursuant to the Order and Notice of Disbar-ment issued on July 23, 2014. Auer filed no response to the complaint filed against him in Colorado. An evidentiary hearing was held in Colorado, which Auer did not attend.3 The Honorable William R. Lucero, Presiding Disci-plinary Judge, entered a judgment by default against him. The Court concluded:4

Respondent practiced law without a Colorado license for more than three years, engaged in dishonest conduct, and failed to cooperate in these disciplinary proceed-ings. Attorneys occupy a position of trust and responsibility and are expected to ad-here to high moral and ethical standards. Respondent disregarded these standards and caused serious injury and serious poten-tial injury to his clients, Colorado attorneys, and the legal profession. In light of the egregious nature of Respondent’s repeated misconduct and the aggravating factors at work here, the Court finds disbarment is warranted.

¶3 Auer failed to advise this Court of his Colorado disbarment as required by Rule 7.7(a), RGDP.5 This Court issued an order to


Respondent on November 6, 2015, directing him to show cause no later than November 16, 2015, why this Court should not proceed with the imposition of summary discipline against him. He was further advised that pursuant to Rule 7.7(b), RGDP, the documents received from the State of Colorado “shall constitute the charge and shall be prima facie evidence the lawyer committed the acts therein described.” Respondent was advised he could request a hearing before the Professional Responsibility Tribunal (PRT) if he alleged the evidence from the Colorado tribunal did not furnish suffi-cient grounds for discipline in Oklahoma. Respondent was further advised he could thereafter submit “any documents, a brief, and/or any evidence tending to mitigate the severity of discipline.”

¶4 Auer timely responded and requested a hearing and briefing schedule. Complainant was granted a request for extension of time to file a response. On December 9, 2015, this Court granted Auer’s request for a hearing and ordered the PRT to hold a hearing and to report its recommendation to this Court within thirty (30) days after the hearing concluded. The order provided Auer could submit a certified copy of the transcript of the evidence taken at the sanctions hearing in Colorado to support his claim “that the finding therein was not sup-ported by the evidence or that it does not fur-nish sufficient grounds for discipline in Okla-homa.” We advised in the December 9, 2015, order that pursuant to Rule 7.7(b) and State ex rel. Oklahoma Bar Ass’n v. Patterson,6 “the facts that resulted in the imposition of discipline by Colorado may not be relitigated, but only reviewed within the context of the evidence presented in that jurisdiction” and that “the range of permissible inquiry in a reciprocal disciplinary proceeding is confined to issues which are germane to the mitigation of the dis-ciplinary sanction to be imposed upon Respon-dent.”

¶5 Following the PRT hearing on January 28, 2016, and the final submission of written clos-ing arguments allowed by the PRT, the Report of the Trial Panel was issued on March 14, 2016. The PRT found, inter alia, that “There was pre-sented no evidence of Respondent violating other rules for the practice of law in Oklahoma, other than his failure to report his Colorado discipline, stated herein.” (Finding of Fact #10). The PRT recommended a six month suspen-sion of his license to practice law, deferred for

one year of probation, subject to rules and con-ditions to be imposed. If the probation is com-pleted satisfactorily, the PRT recommends a public censure. If it is not satisfactorily com-pleted, the Tribunal recommends the six-month suspension to be imposed.

EVIDENCE AND FACTS

a. Colorado

¶6 Respondent became licensed to practice law in Oklahoma in 1991. He also holds a CPA license in Oklahoma, Colorado, and Wyoming. Respondent was never licensed to practice law in Colorado. In 2010, he and Loni Woodley, also a CPA, entered into a partnership, Auer & Woodley CPA’s, to acquire CPA firms in other states.7 They first purchased two accounting firms in Colorado Springs. Most of the clients in the firms already had legal counsel who had set up their businesses or prepared their estate planning documents. They later asked CPA’s from whom they had bought the accounting firms to recommend local counsel who could meet with them and their clients regarding their tax and estate planning issues. Auer testi-fied that he met with clients and worked with outside counsel to provide legal work for their clients in the summer and early fall of 2010.

¶7 After meeting with attorney Terence (Terry) Doherty, licensed in Colorado, the par-ties agreed that Doherty would move into an office at one end of the building. They formed a partnership, Auer & Doherty, LLP, to share expenses between the accounting firm, Auer & Woodley, and Doherty’s law practice. The arrangement lasted only until the end of 2010, and Doherty moved out. Auer testified he con-tinued to work with their clients’ legal counsel and other lawyers in Colorado Springs, and eventually in Denver, as well as with those he met through his membership with Wealth-Counsel. After Doherty moved out, Auer decided to apply for a license to practice law in Colorado under the reciprocity provisions of the Colorado state bar admission rules. He tes-tified he let the application lapse in 2011. After buying accounting firms in Denver, he decided it was not in the best interest of the firm to get licensed in all the affected states, but to affiliate with counsel in those states. He reapplied for reciprocity in late 2012 or early 2013, as their goal for expanding the accounting firm to other states was not working out.

¶8 Doherty testified at the PRT hearing. He stated that at the time they formed Auer &


Doherty LLP, he was told that Auer would become licensed to practice law in Colorado “imminently.” He inquired about the status of Auer’s application in Colorado “multiple times” and was told it was imminent. We note that, at the same hearing, Auer testified that he did not apply for reciprocity with the state of Colorado until after he and Doherty ended their partnership.

¶9 Doherty testified their intended arrange-ment would be to create a law firm to work in proximity to the accounting firm “and bring synergy that way.” He said business clients often need both accounting and legal advice, creating an overlap. However, he said until Auer was licensed, all clients needing legal work had to go through him, and “as the bot-tom line, any document that went out the door from the law firm had to have my blessing.” After several months, he drafted a memo to Auer (Complainant’s Exhibit 12) regarding his concerns about Auer’s promises and the possi-ble unauthorized practice of law. He said Auer’s Colorado law license was never issued, and Auer was marketing their services “to anybody with a pulse.” He was never in the office and was no help at all. Doherty testified he asked the bookkeeper to see the billing statements and discovered Auer was billing for legal ser-vices through the accounting firm instead of the law firm, depriving Doherty of funds that were to be split by Auer & Doherty. He said the entries of billable hours were “mostly” for legal work, such as “prepared estate plan,” and “drafted contracts.” He testified that after this discovery he terminated his relationship with Auer and “walked out the door.” Auer and Doherty reached an agreed settlement upon ending their business relationship.

b. Wyoming

¶10 In Wyoming, in which Auer held a CPA license, there is evidence of his unauthorized practice of law in Cheyenne, where he acquired an accounting firm. He testified he received a cease and desist letter, dated April 5, 2013, from the Unauthorized Practice of Law Com-mittee of the Wyoming State Bar, advising him to cease further activity relating to the unau-thorized practice of law. The letter related to a flyer used to advertise a seminar he was doing at his accounting firm, Auer, Woodley & Ost-lund, in Cheyenne. The cease and desist letter contained a cover letter to Ms. Erin Sokol, legal counsel for Loni Woodley, advising her the letter had been sent to Auer, apparently as a follow-up

to a complaint filed. The flyer in question adver-tising the seminar listed Auer as an attorney, although it did not denote the state in which he was licensed. The flyer contained the language, “Here’s your golden ticket for a free consultation with David Auer, Attorney.” The cease and desist letter referenced the “maintenance of an office in Wyoming as well as various activities conducted by you, within the State of Wyo-ming” and stated that “it was the unanimous consensus of the committee that in fact you have engaged in unauthorized practice of law within the State of Wyoming by giving legal advice and holding yourself out as licensed to practice in this state. You are not licensed to do so.”

¶11 After that letter was admitted as evi-dence, Auer then stated he had not held him-self out as a Wyoming lawyer. However, he then admitted he had testified previously that Auer & Brown’s billing statements for legal services showed a Cheyenne, Wyoming, address. Moreover, he admitted he did engage in the practice of law in Colorado by drawing up legal documents and giving clients legal advice “to the extent that it involved the tax issues that — you know, that I — that the client was asking me to advise him in, that’s correct.”

¶12 Other evidence of the unauthorized practice of law in Colorado is found on billing statements of Auer, Woodley, Hilderbrand & Sanders, LLP, in Colorado Springs. It included entries of preparing and amending revocable trust agreements, preparation of wills, durable powers of attorney, and living will, as well as for making revisions to a revocable trust regarding dispositive provisions for each child of a client. In addition, a billing statement dated November 30, 2012, from Law Offices, Auer Brown, LLP, Attorneys at Law, in Centen-nial, Colorado, showed “David Auer” on the “Statement for Legal Services” for manage-ment and preservation of assets, investments, income tax considerations and preparation of estate planning portfolio. No other lawyer is listed on the statement.

¶13 Auer’s first accounting partner, Loni Woodley, testified at the Colorado proceeding before Judge Lucero. He testified about the costs to his accounting firm caused by Auer. He was forced to advise clients to make them aware of the disbarment of Auer. He said they had lost clients because of it. Most of the affect-ed clients were older individuals who were interested in estate planning. Woodley had to incur additional costs to hire Colorado attorneys


to review the documents that Auer prepared. He stated Auer gave all of his clients estate planning packets with many documents which the clients didn’t fully understand. He also said Auer billed well in excess of $300,000.00 for a period of 12 to 18 months from June, 2012. After Auer was expelled from the firm, they went through arbi-tration. Unwilling to use firm money, Woodley personally incurred costs of over $265,000.00, which represents the legal cost of the arbitra-tion, paying attorneys to look at the docu-ments, and making restitution to clients. Although he reached a settlement with Auer for that amount, he has not been able to collect any of the judgment.

RULES OF RECIPROCAL DISCIPLINE

¶14 This proceeding was commenced in this Court under Rule 7, RGDP,8 as a summary dis-ciplinary proceeding as a result of discipline imposed in another jurisdiction. Rule 7.7(a) requires a lawyer so disciplined to notify the General Counsel’s office within twenty (20) days of the final order. Failure to report “shall itself be grounds for discipline.” Rule 7.7(b) provides that a certified copy of the adjudica-tion and the documents from the other jurisdic-tion “shall constitute the charge and be prima facie evidence the lawyer committed the acts therein described.” Moreover, Auer did not respond or appear at the Colorado hearing, and a default judgment was entered, rendering the facts admitted for evidentiary purposes. Additionally, Auer was given an opportunity by this Court to appear and be heard at a hear-ing before the PRT to present evidence on his behalf. Rule 7.7(b) provides that the lawyer may provide a certified copy of the transcript taken in the tribunal of the other jurisdiction to support his claim the findings are not supported by the evidence or that it does not furnish suffi-cient grounds for discipline in Oklahoma.9 The lawyer may submit a brief and/or evidence in the interest of explaining his conduct or tending to mitigate the severity of the discipline. Mr. Auer did appear before the PRT and testified. However, we find his testimony did not serve to mitigate the severity of discipline that this Court finds to be necessary in this case.

¶15 The Colorado Court found Auer violated Rule 5.5(a)(1) of the Colorado Rules of Profes-sional Conduct, similar to Oklahoma’s Rule 5.5(a)(1), ORPC, which proscribes a lawyer from practicing law without a license. The Court found Auer repeatedly violated this rule by (1) holding himself out as a licensed attor-

ney in Colorado, (2) establishing multiple law offices, (3) drafting legal documents and (4) offering legal advice to clients. The Colorado court also found that when he engaged in the unauthorized practice of law in Wyoming, he violated Colorado’s Rule 5.5(a)(2), RPC, similar to Oklahoma’s ORPC Rule 5.5(a)(2), which prohibits attorneys from practicing law in a jurisdiction, where doing so violates the regu-lations of the legal profession in the other juris-diction. The Colorado Court also found he engaged in dishonest conduct by misrepresent-ing his status to practice law in Colorado, in violation of Rule 8.4c, RPC.

¶16 Under ORPC Rule 8.5(a), an Oklahoma lawyer is subject to the disciplinary authority of Oklahoma “regardless of where the lawyer’s conduct occurs.” Oklahoma’s rule is similar to Colorado’s rule in this regard. The lawyer may be subject to the disciplinary authority of both jurisdictions for the same conduct. We find clear and convincing evidence exists to sup-port a finding that Auer engaged in the unau-thorized practice of law.

¶17 The Bar must prove its allegations of lawyer misconduct by clear and convincing evidence. See RGDP Rule 6.12c; State ex rel. OBA v. Passmore, 2011 OK 90, 264 P.3d 1238, 1243. This Court decides whether misconduct has occurred, and, if so, the appropriate disci-pline to be imposed. State ex rel. OBA v. Zim-merman, 2012 OK 35, ¶15, 276 P.3d 1022, 1027, citing Passmore, supra. In this Court’s de novo standard of review, we are not bound by the PRT’s findings of fact, its view of the evidence, the credibility of witnesses, or its recommenda-tion for discipline. Passmore, supra, at 1243. The primary purpose of lawyer disciplinary pro-ceedings is the protection of the public and purification of the Bar, rather than the punish-ment of the offending lawyer. State ex rel. OBA v. Bellamy, 2012 OK 20, ¶8, 273 P.3d 56, 61-62.

DISCIPLINE

¶18 This Court possesses a nondelegable, constitutional responsibility to regulate the practice of law and the licensure, ethics, and discipline of legal practitioners in this state. State ex rel. Oklahoma Bar Ass’n. v. Wintory, 2015 OK 25, 350 P.3d 131. In a Rule 7.7 proceeding, the facts cannot be relitigated; a respondent’s attack on another jurisdiction’s fact-finding is limited to the evidence contained in a certified copy of the transcript of the other jurisdiction’s proceedings. State ex rel. OBA v. Wintory, supra


at 136, citing State ex rel. OBA v. Patterson, 2001 OK 51, ¶6, 28 P.3d 551. The Court found a pub-lic censure was adequate discipline in Patter-son, supra. We found there had been some confusion as to the original suspension order which gave rise to the subsequent disbarment order and that the Tenth Circuit’s order of dis-barment was too severe. We followed Patterson, supra, in State ex rel. Oklahoma Bar Ass’n v. Kleinsmith, 2013 OK 16, 297 P.3d 1248, and or-dered a public censure in a reciprocal disci-pline case in which the respondent, in Arizona, had improperly filed an arbitration procedure and missed two hearings, leading to a one-year probation subject to termination upon comple-tion of ethics school. Although it did not origi-nate as a Rule 7 reciprocal disciplinary case, in State ex rel. Oklahoma Bar Association v. Mother-shed, 2003 OK 34, 66 P.3d 420, reh. den., 264 P.3d 1197, we ordered the respondent’s disbarment for engaging in the unauthorized practice of law in Arizona, in violation of Rule 5.5(a), ORPC.10 His actions in Arizona were egregious and intentional and caused financial harm to his clients.

¶19 The case before us is more akin to Moth-ershed. The evidence indicates to this Court that Auer intended to enlist the assistance of Colo-rado and Wyoming lawyers and their firms to promote his accounting business. When the accounting business overlapped with the legal work, he appears to have felt insulated from the threat of discipline for the unauthorized practice of law because another lawyer worked with him. However, it is also clear that Auer did not fully explain his Colorado or Wyoming licensing status to the lawyers of the firms in which he worked. It is also clear to the Court that Auer held himself out as a lawyer in both jurisdictions and that when members of the various law firms realized it, they disassociat-ed with him. Auer twice applied for reciprocity in Colorado, but either withdrew or allowed his applications to lapse. This Court finds Re-spondent David Bruce Auer willfully engaged in unauthorized practice of law. We find dis-barment is the appropriate discipline.

¶20 We find there was overwhelming evi-dence before the Colorado disciplinary tribunal to find that Mr. Auer committed the unauthor-ized practice of law in Colorado and in Wyo-ming, in violation of ORPC Rule 5.5(a). The disciplinary authority of this state over its attorneys does not cease when the attorney goes to another jurisdiction. Although Mr.

Auer tried to explain his conduct as merely an overlap between his CPA license and the prac-tice of law, it is clear to this Court that he engaged in the practice of law in Colorado and in Wyoming without a license. He used other lawyers and CPA’s to acquire the clients for his practice. He was not honest with the lawyers with whom he associated. Clients and firms were damaged by his actions.

CONCLUSION¶21 The Bar has filed an application to assess

costs in this matter against Auer, pursuant to Rules 6.13 and 6.16, RGDP, in the amount of $2390.84. The costs consist of certified mail postage expense, certified copy of the tran-script from Colorado, mileage expense for PRT members, and expenses for preparation of tran-scripts for a deposition and the hearing on Janu-ary 28, 2016. We find these expenses to be rea-sonable, and the Bar’s application is granted.

¶22 This Court orders as follows:

a) David Bruce Auer is disbarred from the practice of law in Oklahoma;b) he is ordered to pay the costs of this pro-ceeding in the amount of $2,390.84 within ninety (90) days after this opinion becomes final;c) pursuant to Rule 9.1, RGDP, Auer is directed to notify his clients who have legal business pending within twenty (20) days, by certified mail, of his inability to repre-sent them and the necessity for retaining new counsel. He is also directed to file a formal withdrawal as counsel in all cases pending in any tribunal and to file an affi-davit of compliance with the Commission and the Clerk of the Supreme Court within twenty (20) days; and to otherwise follow the requirements of Rule 9.1, RGDP; andd) Auer is directed to reimburse the Cli-ent’s Security Fund of the Oklahoma Bar Association, pursuant to Rule 11.1(b), RGDP, if any funds have been expended on his behalf, showing the amount paid has been repaid to the Bar, as a condition to reinstatement.

¶23 RESPONDENT DISBARRED; COSTS IMPOSED; COMPLIANCE WITH RULES 9.1, 11.1(b), RGDP, ORDERED.

REIF, C.J., COMBS, V.C.J., WATT, WIN-CHESTER, EDMONDSON, TAYLOR, COL-BERT, GURICH, JJ. - CONCUR


KAUGER, J. - CONCURS IN PART; DISSENTS IN PARTWATT, Justice:

1. Rule 7. Summary Disciplinary Proceedings Before Supreme Court. §7.7. Disciplinary Action in Other Jurisdictions, as Basis for Discipline.

(a) It is the duty of a lawyer licensed in Oklahoma to notify the General Counsel whenever discipline for lawyer misconduct has been imposed upon him/her in another jurisdiction, within twenty (20) days of the final order of discipline, and failure to report shall itself be grounds for discipline.(b) When a lawyer has been adjudged guilty of misconduct in a disciplinary proceeding, except contempt proceedings, by the highest court of another State or by a Federal Court, the General Counsel of the Oklahoma Bar Association shall cause to be trans-mitted to the Chief Justice a certified copy of such adjudication within five (5) days of receiving such documents. The Chief Jus-tice shall direct the lawyer to appear before the Supreme Court at a time certain, not less than ten (10) days after mailing of notice, and show cause, if any he/she has, why he/she should not be disciplined. The documents shall constitute the charge and shall be prima facie evidence the lawyer committed the acts therein described. The lawyer may submit a certified copy of transcript of the evidence taken in the trial tribunal of the other jurisdiction to support his/her claim that the finding therein was not supported by the evidence or that it does not furnish suffi-cient grounds for discipline in Oklahoma. The lawyer may also submit, in the interest of explaining his/her conduct or by way of mitigating the discipline which may be imposed upon him/her, a brief and/or any evidence tending to mitigate the severity of discipline. The General Counsel may respond by submission of a brief and/or any evidence supporting a recommendation of discipline.

2. The order of disbarment was issued on July 23, 2014, prior to the amendment of Rule 7.7, RGDP, by order of this Court on September 30, 2014. The amendment affected only the nature of the General Counsel’s duty to transmit documentation to this Court of a lawyer’s discipline by another jurisdiction, changing it from discretionary to mandatory. No issue has been made as to the Bar’s notice to this Court, and in all other respects, the rules are similar.

3. Although he somewhat participated in the proceedings, he stat-ed he did not attend the hearing because the Colorado Bar’s investiga-tor told him his possible discipline in the proceeding would range from a reprimand to the denial of his reciprocity application.

4. The People of the State of Colorado, Complainant, v. David Auer, Respondent, Case Number 14PDJ006, Supreme Court, State of Colo-rado, Opinion and Decision Imposing Sanctions Pursuant to C.R.C.P. 251.19c, p. 8.

5. Auer was also disciplined by the Oklahoma Accountancy Board and the Insurance Commissioner of the State of Oklahoma, for failing to notify them about the Colorado discipline.

6. 2001 OK 51, 28 P.3d 551.7. Auer became involved in the following firms:

Auer Doherty, LLP; Auer Woodley & Reinemer, P.C., in Engle-wood, Colorado; Auer Brown LLP; Auer Woodley Hilderbrand & Sanders, LLP; Auer, Woodley & Ostlund.

8. See note 1, supra.9. Although Auer did not submit a copy of the transcript from the

Colorado tribunal, the Bar obtained a certified copy and filed it in this proceeding. It was admitted as “Joint Exhibit 1”.

10. He was publicly censured in Arizona which was the harshest penalty the Arizona Supreme Court could impose on a person who was not a member of the Arizona Bar Association.

2016 OK 76

IN THE MATTER Of THE STRIKING Of NAMES Of MEMBERS Of THE

OKLAHOMA BAR ASSOCIATION fOR NONPAYMENT Of 2015 DUES

SCBD No. 6272. June 27, 2016

ORDER STRIKING NAMES

The Board of Governors of the Oklahoma Bar Association filed an Application for Order Striking Names of attorneys from the Oklaho-

ma Bar Association’s membership rolls for failure to pay dues as members of the Oklaho-ma Bar Association for the year 2015.

Pursuant to the Rules Creating and Control-ling the Oklahoma Bar Association (Rules), 5 O.S. 2011 ch. 1, app 1, art. VIII §2, the Oklaho-ma Bar Association’s members named on Exhibit A, attached hereto, were suspended from membership in the Oklahoma Bar Asso-ciation and prohibited from practicing law in the State of Oklahoma by this Court’s Order of June 15, 2015, for failure to pay their 2015 dues in accordance with Article VIII, Section 2 of the Rules. Based upon the application, this Court finds that the Board of Governors determined at its May 20, 2016, meeting that none of the Oklahoma Bar Association members named on Exhibit A, attached hereto, have applied for reinstatement at the time of the filing of its application. The Board of Governors further declared that the members set out on Exhibit A, attached hereto, shall cease to be members of the Oklahoma Bar Association and that their names should therefore be stricken from its membership rolls and the Roll of Attorneys, pursuant to Article VIII, Section 5 of the Rules on June 15, 2016. This Court further finds that the actions of the Board of Governors of the Oklahoma Bar Association are in compliance with the Rules.

It is therefore ordered that the attorneys named on Exhibit A, attached hereto, are hereby strick-en from the Roll of Attorneys for failure to pay their dues as members of the Association for the year 2015.

DONE BY ORDER OF THE SUPREME COURT IN CONFERENCE THIS 27TH DAY OF JUNE, 2016.


ALL JUSTICES CONCUR

EXHIBIT A(Dues - Strike)

Will Douglas Bradley, OBA No. 120799028 Northwest 93rd CircleYukon, OK 73099

Peter John Brangaccio, OBA No. 10781144 S. Braden Ave.Tulsa, OK 74112

Stephen Maxwell Burris, OBA No. 135510800 E. 51stTulsa, OK 74146


Nina Ann Cherian, OBA No. 193152811 Seven Shields LaneLewisville, TX 75056

Shannon Lee Denney, OBA No. 15945310 E. Buffalo St., Suite 158Milwaukee, WI 53222

Carylee Katharine Eisenberg, OBA No. 13031P. O. Box 1156Erick, OK 73645

Jared Ray Ellis, OBA No. 30070P.O. Box 2152Lawton, OK 73502-2152

Marco Dax Flores, OBA No. 31913901 Main St., Suite 3500Dallas, TX 75202

Lenora Michelle Gulley, OBA No. 30378212 North Fourth StreetMuskogee, OK 74403

Robert Baker Highsaw Jr., OBA No. 41938201 S. Walker Ave.Oklahoma City, OK 73139-9451

David William Knight, OBA No. 50854726 Jacksboro Hwy., Ste. GWichita Falls, TX 76302

Angela R. McAlister, OBA No. 212772721 Tottingham Rd.Oklahoma City, OK 73120

Bodil Millwood Mills, OBA No. 20095Bodil Mills LLC626 W. 14th St.Tulsa, OK 74127

David Blaine Weaver, OBA No. 94101901 E. Broadway, Apt #104Enid, OK 73701

2016 OK 77

IN THE MATTER Of THE STRIKING Of NAMES Of MEMBERS Of THE

OKLAHOMA BAR ASSOCIATION fOR NONCOMPLIANCE WITH MANDATORY

CONTINUING LEGAL EDUCATION REQUIREMENTS fOR THE YEAR 2014

SCBD No. 6273. June 27, 2016ORDER STRIKING NAMES

The Board of Governors of the Oklahoma Bar Association filed an application for an Order Striking Names of attorneys from the Oklaho-ma Bar Association’s membership rolls and from the practice of law in the State of Okla-homa for failure to comply with the Rules for

Mandatory Continuing Legal Education, 5 O.S. 2001, ch. 1, app. 1-B, for the year 2014.

Pursuant to Rule 6(d) of the Rules for Man-datory Continuing Legal Education, the Okla-homa Bar Association’s members named on Exhibit A, attached hereto, were suspended from membership in the Association and the practice of law in the State of Oklahoma by Order of this Court on June 15, 2015, for non-compliance with Rules 3 and 5 of the Rules for Mandatory Continuing Legal Education for the year 2014. Based on its application, this Court finds that the Board of Governors determined at their May 20, 2016, meeting that none of the Oklahoma Bar Association’s members named on Exhibit A, attached hereto, have applied for reinstatement within one year of the suspen-sion order. Further, the Board of Governors declared that the members set out on Exhibit A, attached hereto, shall cease to be members of the Oklahoma Bar Association and their names should therefore be stricken from its member-ship rolls and the Roll of Attorneys on June 15, 2016. This Court finds that the actions of the Board of Governors of the Oklahoma Bar Asso-ciation are in compliance with the Rules.

It is therefore ordered that the attorneys named on Exhibit A, attached hereto, are here-by stricken from the Roll of Attorneys for fail-ure to comply with the Rules for mandatory Continuing Legal Education for the year 2014.

DONE BY ORDER OF THE SUPREME COURT IN CONFERENCE THIS 27TH DAY OF JUNE, 2016.


ALL JUSTICES CONCUR

EXHIBIT A(MCLE - Strike)

Will Douglas Bradley, OBA No. 120799028 Northwest 93rd CircleYukon, OK 73099

Jonathan Nathaneal Carter, OBA No. 313296803 S. Western, Suite 405Oklahoma City, OK 73139

Edward Jefferies Clarke, OBA No. 18675511 Couch Dr., Ste. 300Oklahoma City, OK 73102-2250

Carylee Katharine Eisenberg, OBA No. 13031P. O. Box 1156Erick, OK 73645


Elizabeth Anne Hart, OBA No. 182451654 Merton CourtWindsor, CO 80550

Christina Sue Jackman, OBA No. 303876600 S.E. 74th St., Unit 5101Oklahoma City, OK 73135

2016 OK 78

ANNETTE LEGARDE-BOBER, Petitioner, v. OKLAHOMA STATE UNIVERSITY, SELf INSURED (OWN RISK #14526) and THE

WORKERS’ COMPENSATION COMMISSION, Respondents.

Case No. 114,038. June 28, 2016

ON APPEAL fROM THE WORKERS’ COMPENSATION COMMISSION

¶0 Petitioner Annette Legarde-Bober was injured at work and sought treatment and compensation from her Employer OSU/OKC. Employer denied compensability, arguing Peti-tioner’s injury did not arise in the course and scope of her employment under 85A O.S. Supp. 2013 § 2(13). The administrative law judge determined Petitioner’s injury did not occur in the course and scope of employment, and the Workers’ Compensation Commission affirmed. Petitioner appealed the decision of the Commission, and we retained the case. Upon consideration, we hold Petitioner was in the course and scope of her employment as the term is defined in 85A O.S. Supp. 2013 § 2(13) because her actions at the time of her injury were related to and in furtherance of the busi-ness of her Employer OSU/OKC, and she was on the premises of her Employer when she fell.

WORKERS’ COMPENSATION COMMISSION ORDER VACATED; CAUSE

REVERSED AND REMANDED fOR PROCEEDINGS CONSISTENT WITH

TODAY’S PRONOUNCEMENT

John R. Colbert, J. Colbert & Associates, Ard-more, Oklahoma, for Petitioner Annette Legarde-Bober

Heather A. Lehman Fagan, Fellers, Snider, Blankenship, Bailey & Tippens, P.C., Oklahoma City, Oklahoma, for Respondents Oklahoma State University and Own Risk

GURICH, J.

Facts & Procedural History

¶1 Petitioner was employed by Employer Oklahoma State University at the Oklahoma

City campus. She was a teacher at the child development lab. The child development lab is a childcare facility on the campus of OSU/OKC, and childcare is available for students and employees of OSU/OKC. The lab is locat-ed in a building on the OSU/OKC campus. The building where the lab is located is sur-rounded by a sidewalk and parking lot. The parking lot and sidewalk surrounding the building where Petitioner worked was owned and maintained by the University, and Peti-tioner testified she had previously seen OSU employees working in that parking lot. Peti-tioner was given a parking permit by her Employer, which gave her permission, and in fact, required her to park in this particular parking lot.

¶2 On the morning of March 4, 2014, Peti-tioner arrived at the OSU/OKC campus around 8:55 a.m. because she was required by her Employer to begin her shift at 9:00 a.m. She testified that on that morning, the weather was cold and icy. Petitioner did not have the option to work remotely and was required to report to the child development lab on campus in order to perform her job duties. Although other busi-nesses were closed that day due to the weather conditions, the OSU/OKC campus was open, and students and parents had already begun dropping their children off at the child devel-opment lab for childcare. Petitioner testified that after parking in the designated parking lot, she got out of her car, walked across the parking lot, and stepped up onto the curb to go into the building. The Employer’s security camera video for the day in question shows that as Petitioner stepped up onto the curb, she slipped and fell on the ice.1

¶3 The record contains an “Employee Injury Report,” filled out and signed by Petitioner’s supervisor on the date of the incident — March, 4, 2014. The injury report provides: “Went back & looked on camera and it record-ed employee falling @ 9:00.”2 Where the injury report asks “How could this injury have been prevented?” the supervisor states: “Entire parking lot and sidewalk was icy.”3 Notably, where the injury report asks “Injured on employer’s premises?” the supervisor marked “Yes.”4 In fact, Employer OSU/OKC initially determined Petitioner was in the course and scope of her employment when she fell and provided treatment and temporary total dis-ability benefits.5


¶4 Petitioner then sought additional treat-ment and compensation for her injuries. Employer OSU/OKC denied compensability, arguing Petitioner’s injury did not arise in the course and scope of her employment. The administrative law judge held a hearing on January 28, 2015, and determined that Peti-tioner’s injury did not occur in the course and scope of employment within the meaning of the Administrative Workers’ Compensation Act and denied her claim for additional treat-ment and compensation. The Commission affirmed the decision of the ALJ, and Petitioner timely appealed the decision to this Court. We retained the case.

Standard of Review

¶5 Section 78 of Title 85A provides:

C. The judgment, decision or award of the Commission shall be final and conclusive on all questions within its jurisdiction between the parties unless an action is commenced in the Supreme Court of this state to review the judgment, decision or award within twenty (20) days of being sent to the parties. Any judgment, decision or award made by an administrative law judge shall be stayed until all appeal rights have been waived or exhausted. The Su-preme Court may modify, reverse, remand for rehearing, or set aside the judgment or award only if it was:

1. In violation of constitutional provisions;

2. In excess of the statutory authority or jurisdiction of the Commission;

3. Made on unlawful procedure;

4. Affected by other error of law;

5. Clearly erroneous in view of the reliable, material, probative and substantial compe-tent evidence;

6. Arbitrary or capricious;

7. Procured by fraud; or

8. Missing findings of fact on issues essen-tial to the decision.

85A O.S. Supp. 2013 § 78(C). The issue pre-sented in this case is an issue of statutory inter-pretation. Statutory interpretation presents a question of law which we review under a de novo standard. Such review is plenary, inde-pendent, and non-deferential. State ex rel. Pro-

tective Health Servs. State Dep’t of Health v. Vaughn, 2009 OK 61, ¶ 9, 222 P.3d 1058, 1064.

Analysis

¶6 “[C]ourse and scope of employment” in Title 85A of the AWCA means:

[A]n activity of any kind or character for which the employee was hired and that relates to and derives from the work, business, trade or profession of an employer, and is performed by an employee in the furtherance of the affairs or business of an employer. The term includes activities conducted on the premises of an employer or at other locations designated by an employer and travel by an employee in fur-therance of the affairs of an employer that is specifically directed by the employer.6

The Petitioner in this case was hired as a teach-er for the child development lab. She was instructed to report to work at the lab. Employ-er OSU/OKC gave Petitioner a parking permit and instructed her to park in this particular parking lot located on its premises. Petition-er’s actions at the time of her injury were related to and in furtherance of the business of the OSU/OKC child development lab, and at the time of her injury, Petitioner was following her Employer’s instructions exactly. In addi-tion, the Employer OSU/OKC specifically ad-mitted on the Employee Injury Report that the incident occurred on its premises.

¶7 The AWCA also specifies those situations which are not within the course and scope of employment. The facts of this case do not fall under any of the exceptions to the course and scope of employment listed in 85A O.S. Supp. 2013 § 2(13)(a-d):

a. an employee’s transportation to and from his or her place of employment,

b. travel by an employee in furtherance of the affairs of an employer if the travel is also in furtherance of personal or private affairs of the employee,

c. any injury occurring in a parking lot or other common area adjacent to an employ-er’s place of business before the employee clocks in or otherwise begins work for the employer or after the employee clocks out or otherwise stops work for the employer, or

d. any injury occurring while an employee is on a work break, unless the injury occurs


while the employee is on a work break inside the employer’s facility and the work break is authorized by the employee’s supervisor . . . .7

¶8 Subsection (a), transportation to and from the place of employment, does not apply to the facts of this case because Petitioner had arrived at her place of employment when the injury occurred. For similar reasons, subsection (b), travel by an employee in furtherance of per-sonal affairs, does not apply because Petitioner was not traveling at the time of the incident and was not engaged in any activity in further-ance of personal affairs.

¶9 Subsection (c), “any injury occurring in a parking lot or other common area adjacent to an employer’s place of business before the employee clocks in or otherwise begins work for the employer or after the employee clocks out or otherwise stops work for the employer,” likewise does not apply. Although the parties agree Petitioner had not yet clocked in to begin her work day when she fell and was injured, this exception does not apply until the employ-ee leaves the premises. As established above, Petitioner had arrived at her Employer’s place of business and was on the OSU/OKC prem-ises when she fell. She was not in a “parking lot or other common area adjacent to an employ-er’s place of business.” Adjacent means “[l]ying near or close to, but not necessarily touch-ing,”8 “not distant,” “nearby,” or “having a common endpoint or border.”9 The parking lot and sidewalk surrounding the building where Petitioner worked was not on property lying near or close, nearby, or having a common bor-der with the OSU/OKC campus. The parking lot and sidewalk were in fact on the premises of the OSU/OKC campus, which Employer admitted in the Employee Injury Report.

¶10 Subsection (d) excepts from the course and scope of employment “any injury occur-ring while an employee is on a work break, unless the injury occurs while the employee is on a work break inside the employer’s facility and the work break is authorized by the employee’s supervisor.” Although the facts of this case clearly do not apply to this exception, we note that the Legislature specifically distin-guished between an employee’s work break outside the employer’s facility and an employ-ee’s work break inside the employer’s facility in this exception. Had the Legislature also in-tended to make a similar distinction in the ex-

ception in subsection (c), it could have easily done so.

Conclusion

¶11 Because Petitioner’s actions at the time of her injury were related to and in furtherance of the business of her Employer OSU/OKC, and Petitioner was on the premises of her Employer when she fell, she was in the course and scope of her employment as the term is defined in § 2(13). The primary goal of statu-tory construction is to ascertain and follow legislative intent. The plain meaning of a stat-ute’s language is conclusive as to such intent.10 Despite the Legislature’s attempt to create a bright-line rule, cases of this nature have always been, and will continue to be highly dependent on the specific facts of each case. Because Petitioner was in the course and scope of employment when she was injured, we need not reach the constitutional issues raised. The Commission’s interpretation of § 2(13) in this case was legally incorrect and its order deny-ing compensability was clearly erroneous in view of the competent evidence presented.

WORKERS’ COMPENSATION COMMISSION ORDER VACATED; CAUSE

REVERSED AND REMANDED fOR PROCEEDINGS CONSISTENT WITH

TODAY’S PRONOUNCEMENT

¶12 Reif, C.J., Combs, V.C.J., Watt, Edmond-son, Colbert (by separate writing with whom Watt, J., joins), and Gurich, JJ., concur.

¶13 Kauger, Winchester (by separate writing with whom Kauger, Taylor, JJ., join), and Tay-lor, JJ., dissent.

COLBERT, J., concurring specially with whom WATT, J. joins.

¶1 I concur in the majority’s analysis and decision finding that Claimant’s injuries are in the “course and scope of employment” as set forth in Title 85A, section 2(13) of the Oklaho-ma Statutes. I write separately, however, to express my concern in the majority’s continued side-stepping of constitutional challenges properly raised before this Court.

¶2 This Court held in Coats v. Fallin that con-stitutional challenges to the Administrative Worker’s Compensation Act (AWCA) would be assessed on an as applied basis. 2013 OK 108, 316 P.3d 924. Petitioner, here, challenged the constitutionality of the AWCA as a due process violation under Article 2 Section 6 of


the Oklahoma Constitution. And, Petitioner specifically alleged that section 2(13)(a) and (c) of Title 85A violated her constitutionally pro-tected right to a remedy and access to the courts. Yet, the majority’s opinion makes no acknowledgment of Petitioner’s claims.

¶ 3 This Court must consider constitutional challenges that are adequately presented in the record. Dow Jones & Co., Inc. v. State ex rel. Okla. Tax Com’n, 1990 OK 6 ¶ 6, 787 P.2d 843, 845, see also Okla. Stat. tit. 85A, § 78(C)(Supp. 2014). But, rather than keeping with the assur-ance made in Coates v. Fallin, and our funda-mental responsibility to support and obey the Constitution, this Court continues to dodge the inevitable.

WINCHESTER, J., with whom Kauger, and Taylor, JJ., join, dissenting:

¶1 I respectfully dissent. The legislature made a policy decision to draw a clear line for the employer and employee that the “clock” began and ended the employer’s liability under Workers’ Compensation, unless directed other-wise by the employer. The definition section of the Workers’ Compensation law defines “course and scope of employment” and excludes an employee’s transportation to and from the place of employment and excludes injury occurring in a parking lot before the employee clocks in or begins work for the employer.1 The majority have now ruled that the employee is within the course and scope of employment when enter-ing the parking lot, even though the employee is not clocked in.

¶2 The whole context of the statute revolves around what the legislature has excluded from falling within the phrase “course and scope of employment.” The term doesn’t include an employee’s transportation to and from the place of employment, travel by an employee on behalf of the employer if the travel also includes personal or private affairs of the employee, injury during a work break unless the break is authorized by the employer and inside the employer’s facility, and of course, injury occurring in a parking lot next to the employer’s place of business before clocking in. A generalization can be made. If not clocked in, which reflects the beginning of work, an employee is not covered by Worker’s Compen-sation because that employee is not within the course and scope of employment. Travel to the workplace, in and of itself is not within the course and scope of employment until the em-

ployee performs tasks recognized as the begin-ning of work. To make that clear, the legislature eliminates from “course and scope of employ-ment,” accidents in the employer’s parking lot. If parking lot accidents are eliminated by the statute then Workers’ Compensation does not cover such injuries.

¶3 Workers’ Compensation is not an exclu-sive remedy if the statutes specifically elimi-nate parking lot injuries as coming within the “course and scope of employment.” If there is actionable negligence for a parking lot injury, it is still covered by tort law. The Court’s opinion holds that “A parking lot owned or controlled by the employer alone clearly constitutes the ‘premises’ of such employer, and is part of the ‘employer’s place of business.” However, if the legislature has intentionally excluded the park-ing lot from the jurisdiction of Workers’ Com-pensation law, the “premises” doctrine is no longer valid. The legislature has the authority and power to make such an exception. I con-clude that it “clearly” made such an exception.

¶4 This type of accident fits within the cate-gory of a “going and coming injury,” which is described in Graham Public Schools v. Priddy, 2014 OK 30, ¶ 1, 328 P.3d 1190, 1191. What this Court has declared to be the law based on con-struction of former statutes, the legislature has specifically and intentionally rejected by cur-rent statute.

GURICH, J.

1. The security camera video also reflects the entire parking lot was covered in ice and snow. On cross examination, Petitioner was asked the following:

Q: And when you walked from your car up towards the door-way you were first attempting to go in to, you didn’t notice any sand or ice, correct?A: I noticed ice.Q: I’m sorry ice melt, I apologize?A: I didn’t.Q: Did you see any snow plows in the parking lot?A: No.Q: And was anyone out there shoveling?A: No.

Transcript of Hearing at 20 (Jan. 28, 2015).2. Record on Appeal at 24.3. Id.4. Id.5. Transcript of Hearing at 6-7 (Jan. 28, 2015).6. 85A O.S. Supp. 2013 § 2(13) (emphasis added). Before 2010, this

Court’s case law provided the relevant authority in determining whether an employee was in the course and scope of his or her employment. However, in 2010, the Legislature undertook to define the meaning of course and scope of employment by statute, and such language remained in the Workers’ Compensation Code enacted in 2011. See 85 O.S. Supp. 2010 § 11(A); 85 O.S. 2011 § 312(6).

7. 85A O.S. Supp. 2013 § 2(13)(a-d).8. Black’s Law Dictionary (10th ed. 2014).9. Merriam Webster, Adjacent, http://www.merriam-webster.

com/dictionary/adjacent (last visited June 15, 2016).10. Samman v. Multiple Injury Trust Fund, 2001 OK 71, ¶ 13, 33

P.3d 302, 307.


WINCHESTER, J., with whom Kauger, and Taylor, JJ., join, dissenting:

1. 85A O.S.Supp.2014, § 2(13) provides: “’Course and scope of employment’ means an activity of any kind or character for which the employee was hired and that relates to and derives from the work, business, trade or profession of an employer, and is performed by an employee in the furtherance of the affairs or business of an employer. The term includes activities conducted on the premises of an employer or at other locations designated by an employer and travel by an employee in furtherance of the affairs of an employer that is specifi-cally directed by the employer. This term does not include:

“a. an employee’s transportation to and from his or her place of employment,“b. travel by an employee in furtherance of the affairs of an employer if the travel is also in furtherance of personal or private affairs of the employee,“c. any injury occurring in a parking lot or other common area adjacent to an employer’s place of business before the employee clocks in or otherwise begins work for the employer or after the employee clocks out or otherwise stops work for the employer, or“d. any injury occurring while an employee is on a work break, unless the injury occurs while the employee is on a work break inside the employer’s facility and the work break is authorized by the employee’s supervisor . . . .”

2016 OK 79

Wayne Robert Leritz, Appellant, v. farmers Insurance Company, Inc., Appellee, and

Larry Allen Yates, Defendant.

No. 110,013. June 28, 2016


Division III

¶0 A Kansas resident was injured when his motorcycle collided with a car in Oklaho-ma. He sought to stack uninsured motorist coverage based on his three Kansas poli-cies. The trial court, Honorable Robert C. Haney, District Court, Delaware County, granted the insurer’s motion for summary judgment applying Kansas law, which pro-hibits stacking, to resolve a perceived con-flict of laws. The Court of Civil Appeals affirmed.


VACATED; JUDGMENT OF DISTRICT COURT REVERSED; CAUSE REMANDED.

Rex Travis, Paul D. Kouri, Oklahoma City, Oklahoma, for Appellant.

J. Anthony Miller, Tulsa, Oklahoma; A. Mark Smiling, Shena E. Burgess, SMILING LAW FIRM, Tulsa, Oklahoma, for Appellee.

COLBERT, J.

FACTS AND PROCEDURAL HISTORY

¶1 Appellant, Robert Wayne Leritz (Plaintiff) is a Kansas resident whose motorcycle and two

other vehicles were garaged in Kansas under an insurance policy issued by Appellee, Farm-ers Insurance Company (Farmers) in Kansas. Plaintiff was injured in a motorcycle accident in Oklahoma on July 7, 2008, when Defendant, Larry Allen Yates, made a left hand turn and collided with Plaintiff causing serious bodily injuries. Plaintiff brought this action alleging that he had incurred medical expenses and suf-fered damages exceeding Yates’s liability cov-erage. There was a question as to whether he could stack his uninsured motorist (UM) cov-erage based on his ownership of policies on each of his three vehicles. Oklahoma allowed the practice,1 until the Oklahoma Legislature amended the UM provision, section 3636 of title 36, in 2014 to provide: “Policies issued, renewed or reinstated after November 1, 2014, shall not be subject to stacking or aggregation of limits unless expressly provided for by an insurance carrier.” 2014 Okla Sess. Laws ch. 307. Kansas does not allow stacking. The trial court granted summary judgment to the insur-er and the Court of Civil Appeals affirmed, applying the insurer’s proposed solution to a perceived conflict of laws issue. However, there is no conflict of laws issue on these facts because the policy specifies which law will apply to an issue of stacking of policies. Giving the policy provisions effect makes a choice of law analysis unnecessary.2

STANDARD OF REVIEW

¶2 An order that grants summary judgment, in whole or in part, disposes solely of law ques-tions. Brown v. Nicholson, 1997 OK 32, ¶ 5 n.1, 935 P.2d 319, 321 n.1. It is reviewable by a de novo standard. Kluver v. Weatherford Hosp. Auth., 1993 OK 85, ¶ 14, 859 P.2d 1081, 1084.

ANALYSIS

¶3 By its terms, the policy “applies only to accidents, occurrences, and losses during the policy period shown in the Declarations which occur within the United States, its territories or possessions, or Canada, or while the motorcy-cle is being shipped between their ports.” The policy further contemplates out of state cover-age by providing:

An insured person may become subject to the financial responsibility law, compulso-ry insurance law or similar law of another state or in Canada. This can happen because of the ownership, maintenance or use of your insured motorcycle when you travel outside of your home state. We will inter-


pret this policy to provide any broader coverage required by those laws, except to the extent that other liability insurance applies. No person may collect more than once for the same elements of loss.

(Emphasis added). Most importantly, the policy addresses specifically the issue of stack-ing of UM coverage and links it to the state law of the state in which the accident occurred by providing: “Subject to the law of the state of occurrence, we will pay no more than these maximums regardless of the number of vehicles insured, insured persons, claims, claimants, pol-icies, or vehicles involved in the occurrence.” (Emphasis added). Thus, the policy limits stack-ing, but only if the law of the state of occur-rence limits stacking.3 Oklahoma law did not limit stacking.4 Therefore, under the policy’s choice to defer to the law of the state of occur-rence regarding stacking, the policy holder was entitled to stack UM coverage.

¶4 The parties and the Court of Civil Appeals became distracted from the policy language by a dispute concerning whether a conflict of law determination should be made according to Oklahoma’s conflict of law stat-ute concerning contracts, this Court’s case law, or the UM statute found at section 3636 of title 36. There actually is no dispute because the policy provides its own choice of law pro-vision concerning the stacking of UM cover-age. Unfortunately, the policy provisions have yet to be given effect by the lower courts. This matter is remanded to the trial court for application of the policy provisions.


VACATED; JUDGMENT OF DISTRICT COURT REVERSED; CAUSE REMANDED.

CONCUR: Reif, C.J., Combs, V.C.J., Kauger, Watt, Edmondson, Colbert, J.J.

DISSENT: Winchester, Taylor, Gurich (by sepa-rate writing) J.J.

GURICH, J., with whom WINCHESTER and TAYLOR, JJ., join dissenting:

¶1 I must respectfully dissent to the majority opinion in the above-styled matter. The present case concerns only three Kansas insurance policies — no Oklahoma policy is involved. Today’s opinion effectively reverses established precedent without expressly doing so; namely our prior decision in Bernal v. Charter County Mutual Ins. Co., 2009 OK 28, 209 P.3d 309.

Bernal v. Charter County Mutual Ins. Co., 2009 OK 28

¶2 The majority decision is in direct conflict with our holding in Bernal v. Charter County Mutual Ins. Co., where we determined Okla-homa’s UM statute could not be applied to an insurance policy with zero connection to this state:

The Oklahoma legislature has directed a specific choice-of-law provision to govern under the UM statute. By its own terms, § 3636(A) applies solely to a policy ‘issued, delivered, renewed, or extended in this state with respect to a motor vehicle regis-tered or principally garaged in this state….’ Whenever the legislature commands us to apply the law of another state, we must abide by its directive. The parties do not dispute the automobile in this single-vehi-cle accident was registered and principally garaged in Shallowater, Texas. That state’s law must hence govern the terms of liabil-ity under that state’s insurance policy.

Id. ¶ 14, 209 P.3d at 316. In rejecting the plain-tiff’s claim for UM benefits by application of Oklahoma law, we further noted:

That Texas law permits nonpayment of UM benefits under the terms of the Charter policy does not implicate any insurance benefits under an existing Oklahoma poli-cy. Neither UM benefits contracted and paid for pursuant to Oklahoma law are implicated here nor were any benefits due under our law either denied or diminished.

Id. ¶ 17, 209 P.3d at 317 (emphasis added).

¶3 Here too, there are no UM benefits con-tracted or paid for pursuant to Oklahoma law. Additionally, there are no Oklahoma insurance benefits diminished in any way through appli-cation of Kansas law. Unless the majority of this Court chooses to overrule Bernal, we are bound to follow the decision by reason of stare decisis. It should be noted that Leritz conceded in a “Suggestion the Court Should Rule,” filed in this Court on October 17, 2013, and directed to COCA, “[p]laintiff/[a]ppellant states in the briefs below that, under present Oklahoma law, the Motion for Summary Judgment ap-pealed was properly sustained but seeks to change the law.”

¶4 Oklahoma has no connection with the present dispute other than being the location of Leritz’ accident and the residence of the unin-


sured tortfeasor. Leritz has acknowledged throughout proceedings that Oklahoma juris-prudence (i.e., Bernal) requires this case to be decided in accordance with Kansas law. Unless Oklahoma UM benefits are involved, there is simply no reason to apply our UM law to settle this disagreement.

¶5 It is undisputed that Kansas law pre-cludes the stacking of UM/UIM policy bene-fits. Under Kansas law, Leritz is entitled to payment of $100,000 UM due under one policy insuring his motorcycle. Consequently, COCA reached the correct result in this case.

COLBERT, J.

1. The policy in this matter has a renewal period of July 6, 2008, until January 29, 2009. Therefore, the statutory prohibition on the stacking of UM coverage does not apply to this dispute.

2. Generally,”[t]he law of the state chosen by the parties to govern their contractual rights and duties will be applied . . ..” Restatement (Second) Conflict of Laws, § 187 (1971); Fossil Creek Energy Corp. v. Cook’s Oilfeild Servs., 2010 OK CIV APP 123, ¶ 11 n.5, 242 P.3d 537, 541 n.5. See also, Telex Corp. v. Hamilton, 1978 OK 32, ¶¶ 7-8, 576 P.2d 767, 768 (implying that, even if the contract had not been entered into and performed in Oklahoma, Oklahoma law would have been applied because the contract so provided); 43 Am. Jur. 2d Insurance § 337 (“Where it is provided by the contract of insurance itself that it shall be construed in accordance with the laws of a designated place and the stipulation is valid, such stipulation as a general rule controls the con-struction and effect of the contract . . ..”).

3. The courts will read the provisions of a contract “to give effect to the intention of the parties as ascertained from the four corners of the contract . . ..” Okla. Oncology & Hematology P.C. v. US Oncology, Inc., 2007 OK 12, ¶ 27, 160 P.3d 936, 946. See also Okla. Stat. tit. 15, § 155 (2011)(“When a contract is reduced to writing, the intention of the par-ties is to be ascertained from the writing alone, if possible, subject, however, to the other provisions of this article.”).

4. This Court adopted the stacking rule in 1976 in Keel v. MFA Ins. Co., 1976 OK 86, ¶ 13, 553 P.2d 153, 156 (“We, therefore, hold where an insured has been issued multiple automobile policies containing unin-sured motorist coverage for which a premium has been paid, the extent of the coverage is the combined total amount of such policies.”).

2016 OK 80

STATE Of OKLAHOMA ex rel. OKLAHOMA BAR ASSOCIATION,

Complainant, v. SHANITA DANIELLE GAINES, Respondent.

O.B.A.D. No 2095. S.C.B.D. No. 6389 June 28, 2016

ORIGINAL PROCEEDING fOR ATTORNEY DISCIPLINE

¶0 Respondent, a lawyer licensed in Okla-homa, received a two-year probated sus-pension of her license to practice of law in the State of Texas. Pursuant to Rule 7.7 of the Oklahoma Rules Governing Disciplin-ary Proceedings, 5 O.S.Supp.2015 Ch. 1, App. 1-A, the complainant, Oklahoma Bar Association, filed in this Court documen-tation showing respondent’s suspension by the Texas State Bar. Upon order of this

Court, respondent was directed to show cause why a final order of professional discipline should not be imposed on her by this Court. Respondent did not file a response and complainant requests a final order of discipline and imposition of costs. We hold that respondent’s appropriate pro-fessional discipline is a suspension from the practice of law for two years and one day. Costs in the amount of $66.52 are imposed on respondent.

RESPONDENT IS SUSPENDED fROM THE PRACTICE Of LAW fOR TWO YEARS

AND ONE DAY AND ORDERED TO PAY COSTS

Loraine Dillinder Farabow, First Assistant Gen-eral Counsel, Oklahoma Bar Association, Okla-homa City, Oklahoma, for Complainant.

No appearance for Respondent.

EDMONDSON, J.

¶1 Respondent received previous attorney discipline from the State Bar of Texas, and the Oklahoma Bar Association filed a reciprocal professional discipline proceeding in this Court. The Bar Association recommends that respondent be suspended from the practice of law for two years and one day. We impose a suspension for two years and one day, and impose costs in the amount of sixty-six dollars and fifty-two cents ($66.52).

Texas State Bar Proceeding

¶2 In March of 2016, respondent personally appeared before an Evidentiary Panel of a Grievance Committee for the State Bar of Texas where three disciplinary cases against her were adjudicated. The Evidentiary Panel made Find-ings of Fact and Conclusions of Law concern-ing respondent’s professional conduct in the three disciplinary cases. The Panel’s judgment orders, adjudges and decrees “that Respondent be suspended from the practice of law for a period of two (2) years, with the suspension being fully probated . . .” pursuant to the terms specified in the judgment. The panel’s judg-ment directed it “shall be made a matter of record and appropriately published in accor-dance with the Texas Rules of Disciplinary Procedure.” Nothing in the record before us suggests respondent lacked a full and fair opportunity to litigate the complaints before the Texas State Bar.


¶3 In the first case, the panel found that respondent (1) neglected legal matters entrust-ed to her by failing to provide legal services, (2) failed to keep a client reasonably informed about the status of client’s legal matters, and (3) failed to supervise a nonlawyer in her office in accordance with respondent’s professional obligations. In the second case, the panel found that respondent (1) received settlement funds and failed to promptly notify both her client and her client’s medical providers who had interests in these funds, (2) failed to promptly deliver the settlement funds to her client and her client’s medical providers, (3) failed to supervise a nonlawyer in her office in accor-dance with respondent’s professional obliga-tions, (4) shared legal fees with a nonlawyer in her office, and (5) owed restitution in the amount of one thousand five hundred sixty-six and 66/100 dollars to her client. In the third case, the panel found that respondent neglect-ed a legal matter by failing to provide legal services, (2) failed to keep this client reason-ably informed about the status of client’s legal matters, (3) failed to comply with reasonable requests from the client for information about the status of the client’s legal matters, and (4) failed to supervise a nonlawyer in her office in accordance with respondent’s professional obligations.

¶4 The panel’s Conclusions of Law are respondent violated Texas Disciplinary Rules of Professional Conduct, Rules 1.01(b)(1), (com-petent and diligent representation),1 1.03(a), (communication),2 1.14(b) (safekeeping prop-erty),3 5.03(a) (responsibilities regarding non-lawyer assistants),4 and 5.04(a)(Professional Independence of a Lawyer).5 of the Texas Disci-plinary Rules of Professional Conduct.

¶5 The panel imposed upon respondent a probated suspension for two years. The terms of the probation are that she (1) not violate any term of the suspension, (2) not engage in pro-fessional misconduct in violation of Texas Rules of Disciplinary Procedure, Rule 1.06(W),6 (3) not violate any state or federal criminal stat-utes, (4) keep the Texas State Bar advised on her current addresses and telephone numbers, (5) comply with Texas continuing legal educa-tion requirements, (6) comply with Interest on Lawyers Trust Account (IOLTA), (7) promptly respond to any request for information from the Chief Disciplinary Counsel’s Office in con-nection with any investigation of allegations of professional misconduct, (8) pay restitution to

her client in the amount of $1,566.66, (9) pay reasonable and necessary attorney’s fees and direct expenses of the Texas State Bar in the amount of $1,962.50, and (10) make contact with the Chief Disciplinary Counsel’s Offices’ Compliance Monitor and Special Programs Coordinator. The panel’s order stated the pro-cedure for revoking her probation, she would not be given credit for any term of probation served prior to revocation, and any conduct which serve as grounds to revoke her proba-tion could be brought as independent grounds for professional discipline. The order stated that any amount of money not paid shall accrue interest at the maximum legal rate per annum until paid and the State Bar of Texas “shall have all writs and other post-judgment remedies against Respondent in order to col-lect all unpaid amounts.”

Oklahoma Discipline

¶6 This Court may impose lawyer discipline on a lawyer when that lawyer has received discipline from the highest court of another state or a federal court.7 Rule 7 of the Rules Governing Disciplinary Proceedings, 5 O.S.2011 Ch. 1, App. 1-A, provides for summary lawyer disciplinary proceedings before the Supreme Court in rule-specified circumstances. One of these circumstances is a lawyer’s professional discipline imposed on the lawyer in another jurisdiction. Rule 7.7 of the Rules Governing Disciplinary Proceedings (R.G.D.P.).8 This rule also provides the Court will issue an order pro-viding a respondent an opportunity to appear and show cause why he or she should not be disciplined by this Court.9

¶7 On April 28, 2016, this Court issued an order directing respondent “to show cause in writing why a final order of discipline should not be imposed, or to request a hearing, on or before May 19, 2016.” Respondent did not file a response to this Court’s order or enter an appearance. Respondent did not request a hearing.

¶8 A lawyer accused of misconduct must be afforded due process, and given notice of the charges and a reasonable opportunity to be heard.10 Complainant filed a notice of serving respondent a copy of the order of the Texas State Bar. This notice used respondent’s roster address for the Oklahoma Bar Association. Complainant did not file any notice of serving respondent a copy of the Court’s order direct-


ing respondent to show cause why a final order of discipline should not be entered.

¶9 The rules of this Court require the Clerk of this Court to mail orders and notices to parties, including respondents in a lawyer discipline proceeding who have failed to make an appear-ance.11 In a Rule 7.7 proceeding where a respon-dent has not made an appearance, this Court has used mail to the lawyer’s Bar Association address as a method to provide notice of (1) an order directing the lawyer to respond why final discipline should not be entered, and (2) the order imposing final discipline.12 This Court has held notice by mail to a lawyer’s official roster address to be sufficient to satisfy due process.13 A lawyer’s failure to respond to the Bar’s requests for information or the disciplin-ary complaint, or failure to appear at a disci-plinary hearing does not prevent this Court from crafting an appropriate discipline.14 A lawyer’s failure to respond to this Court’s order directing a Rule 7.7 response from the lawyer does not prevent this Court from enter-ing an order of final discipline.

¶10 Documents including a certified copy of an adjudication of professional misconduct in another jurisdiction which is transmitted to this Court “shall constitute the charge and shall be prima facie evidence the lawyer committed the acts therein described.”15 The documents provided to this Court by the complainant pur-suant to Rule 7.7(b), and showing a two-year probated suspension constitute the charge and are prima facie evidence that respondent com-mitted the acts described therein. A respondent has the burden of showing that the findings forming the basis of the suspension in the other jurisdiction were not supported by the evi-dence or that the findings are not sufficient grounds for discipline in Oklahoma.16 Respon-dent did not meet her burden in this proceed-ing. The Texas judgment with its findings may be used in this proceeding as a basis to impose professional discipline.

¶11 This Court’s nondelegable and constitu-tional responsibility to regulate the practice of law and the licensure, ethics, and discipline of legal practitioners in this state is an exercise of this Court’s original jurisdiction.17 The respon-sibility of this Court in disciplinary proceed-ings is to inquire into and to gauge a lawyer’s continued fitness to practice law, with a pur-pose of safeguarding the interest of the public, of the courts, and of the legal profession.18 In reciprocal disciplinary proceedings, it is with-

in the discretion of this Court to impose the same discipline as that imposed in the other jurisdiction or one of greater or lesser severi-ty.19 Discipline imposed by this Court should be consistent with that imposed by this Court for similar acts of misconduct.20

¶12 The Oklahoma Rules of Professional Con-duct (O.R.P.C.), Rule 1.15, requires safekeeping of a client’s funds that are in a lawyer’s posses-sion in connection with the lawyer’s representa-tion, as well as requiring the lawyer to provide notice of such possession to the client and third parties who have interests in those funds.21 A lawyer has a fiduciary duty to prop-erly manage funds entrusted to the lawyer’s care, and where a lawyer violates that duty, this Court engages three levels of culpability, (1) commingling, (2) simple conversion, and (3) misappropriation.22 The record in this proceed-ing is sufficient to show respondent’s commin-gling and conversion of funds belonging to a client and medical providers.23 We have ex-plained “This court has pronounced varying levels of discipline in matters involving mis-handling of client funds. The disciplinary range has extended from censure to disbarment, depending in large part on the degree of harm to the client.”24 The disciplinary judgment directed respondent to make monthly install-ment payments for restitution to her client as conditions for her continued probation. There is no record before us concerning her repay-ment to her client.

¶13 In a reciprocal disciplinary proceeding based upon a previous Texas State Bar pro-ceeding, we imposed a one-year suspension for a lawyer’s conduct which included neglect of legal matters and failing to keep a client informed, and we explained such conduct by the lawyer were also violations of the Oklaho-ma Rules of Professional Conduct.25 A lawyer violates the O.R.P.C. when a failure to super-vise a nonattorney employee enables the employee to engage in the unauthorized prac-tice of law by performing legal services with-out proper supervision by a licensed lawyer.26 See, e.g., O.R.P.C., Rules 5.3,27 5.5(a),28 and 8.4(a).29 A lawyer’s neglect of legal matters per-taining to his or her client is a violation of the lawyer’s ethical duties. For example, we recently imposed a suspension for two years and one day because of a lawyer’s five counts of neglect of cases, failing to keep clients informed of the status of their cases, collecting and retaining fees for which little or no services


were provided and failure to respond to the grievances.30

¶14 After Respondent’s disciplinary pro-ceeding in Texas, she was suspended by this Court from the practice law for her failure to comply with the requirements of Oklahoma’s Mandatory Continuing Legal Education (M.C. L.E.) for the year 2015.31 Complainant also argues respondent violated R.G.D.P., Rule 7.7(a) when she failed to notify the General Counsel of the Oklahoma Bar Association of the Texas disciplinary proceeding.32

¶15 In summary, respondent committed an act of commingling and conversion, neglected legal matters, failed to communicate with cli-ents, failed to supervise an employee that resulted in the unauthorized practice of law, and failed to notify the General Counsel of her disciplinary proceeding. Suspensions for one year as well as two years and one day have been imposed for conduct involving neglect of legal matters, commingling and conversion, and failure to comply with a rule of disciplin-ary procedure. The Bar Association recom-mends that respondent be suspended from the practice of law for two years and one day. The appropriate discipline is a suspension for two years and one day.

Conclusion

¶16 The Bar Association filed an application to assess its costs against respondent in the amount of sixty-six dollars and fifty-two cents ($66.52). In a proceeding pursuant to R.G.D.P., Rule 7, we have imposed the costs of the pro-ceeding on the lawyer receiving professional discipline.33 The Bar’s motion to assess costs is granted. Costs shall be paid within ninety (90) days from the date this opinion is final.34

¶17 Respondent shall comply with R.G.D.P., Rule 9, including notification to her clients within twenty (20) days of her inability to rep-resent them. She shall “also file a formal with-drawal as counsel in all cases pending in any tribunal,” and file an affidavit with the Profes-sional Responsibility Commission and the Clerk of the Supreme Court stating respon-dent’s compliance with R.G.D.P., Rule 9.1, with a list of clients notified and other State and Federal courts notified as required by that rule.

¶18 Respondent’s license to practice law in Oklahoma is suspended for two years and one day from the date this opinion is final. Costs

are granted against respondent in the amount of sixty-six dollars and fifty-two cents ($66.52).

¶19 CONCUR: COMBS, V.C.J., KAUGER, WATT, WINCHESTER, EDMONDSON, TAY-LOR, COLBERT, and GURICH, JJ.

¶20 NOT PARTICIPATING: REIF, C. J.

EDMONDSON, J.

1. V.T.C.A., Govt. Code T. 2, Subt. G. App. A (State Bar Rules) Art. 10 (Discipline and Suspension of Members), § 9 (Texas Disciplinary Rules of Professional Conduct), Rule 1.01 (Competent and Diligent Representation):

Rule 1.01, Competent and Diligent Representation.(a) A lawyer shall not accept or continue employment in a

legal matter which the lawyer knows or should know is beyond the lawyer’s competence, unless:

(1) another lawyer who is competent to handle the matter is, with the prior informed consent of the client, associated in the matter; or

(2) the advice or assistance of the lawyer is reasonably required in an emergency and the lawyer limits the advice and assistance to that which is reasonably necessary in the circum-stances.

(b) In representing a client, a lawyer shall not:(1) neglect a legal matter entrusted to the lawyer; or(2) frequently fail to carry out completely the obligations that

the lawyer owes to a client or clients.(c) As used in this Rule, “neglect” signifies inattentiveness

involving a conscious disregard for the responsibilities owed to a client or clients.

2. V.T.C.A., Govt. Code T. 2, Subt. G. App. A (State Bar Rules) Art. 10 (Discipline and Suspension of Members), § 9 (Texas Disciplinary Rules of Professional Conduct), Rule 1.03 (Communication):

(a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.

(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

3. V.T.C.A., Govt. Code T. 2, Subt. G. App. A (State Bar Rules) Art. 10 (Discipline and Suspension of Members), § 9 (Texas Disciplinary Rules of Professional Conduct), Rule 1.14 (Safekeeping Property):

(a) A lawyer shall hold funds and other property belonging in whole or in part to clients or third persons that are in a law-yer’s possession in connection with a representation separate from the lawyer’s own property. Such funds shall be kept in a separate account, designated as a “trust” or “escrow” account, maintained in the state where the lawyer’s office is situated, or elsewhere with the consent of the client or third person. Other client property shall be identified as such and appropriately safeguarded. Complete records of such account funds and other property shall be kept by the lawyer and shall be preserved for a period of five years after termination of the representation.

(b) Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. Except as stated in this rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property.

(c) When in the course of representation a lawyer is in pos-session of funds or other property in which both the lawyer and other person claim interests, the property shall be kept separate by the lawyer until there is an accounting and severance of their interest. All funds in a trust or escrow account shall be disbursed only to those persons entitled to receive them by virtue of the representation or by law. If a dispute arises concerning their respective interests, the portion in dispute shall be kept separat-ed by the lawyer until the dispute is resolved, and the undis-puted portion shall be distributed appropriately.

4. V.T.C.A., Govt. Code T. 2, Subt. G. App. A (State Bar Rules) Art. 10 (Discipline and Suspension of Members), § 9 (Texas Disciplinary Rules of Professional Conduct), Rule 5.03 (Responsibilities Regarding Nonlawyer Assistants):


With respect to a nonlawyer employed or retained by or associated with a lawyer:

(a) a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the per-son’s conduct is compatible with the professional obligations of the lawyer; and

(b) a lawyer shall be subject to discipline for the conduct of such a person that would be a violation of these rules if engaged in by a lawyer if:

(1) the lawyer orders, encourages, or permits the conduct involved; or

(2) the lawyer:(i) is a partner in the law firm in which the person is

employed, retained by, or associated with; or is the general counsel of a government agency’s legal department in which the person is employed, retained by or associated with; or has direct supervisory authority over such person; and

(ii) with knowledge of such misconduct by the nonlawyer knowingly fails to take reasonable remedial action to avoid or mitigate the consequences of that person’s misconduct.

5. V.T.C.A., Govt. Code T. 2, Subt. G. App. A (State Bar Rules) Art. 10 (Discipline and Suspension of Members), § 9 (Texas Disciplinary Rules of Professional Conduct), Rule 5.04 (Professional Independence of a Lawyer):

(a) A lawyer or law firm shall not share or promise to share legal fees with a non-lawyer, except that:

(1) an agreement by a lawyer with the lawyer’s firm, partner, or associate, or a lawful court order, may provide for the pay-ment of money, over a reasonable period of time, to the lawyer’s estate to or for the benefit of the lawyer’s heirs or personal rep-resentatives, beneficiaries, or former spouse, after the lawyer’s death or as otherwise provided by law or court order.

(2) a lawyer who undertakes to complete unfinished legal business of a deceased lawyer may pay to the estate of the deceased lawyer that proportion of the total compensation which fairly represents the services rendered by the deceased lawyer; and

(3) a lawyer or law firm may include non-lawyer employees in a retirement plan, even though the plan is based in whole or in part on a profit-sharing arrangement.

(b) A lawyer shall not form a partnership with a non-lawyer if any of the activities of the partnership consist of the practice of law.

(c) A lawyer shall not permit a person who recommends, employs, or pays the lawyer to render legal services for another to direct or regulate the lawyer’s professional judgment in ren-dering such legal services.

(d) A lawyer shall not practice with or in the form of a profes-sional corporation or association authorized to practice law for a profit, if:

(1) a nonlawyer owns any interest therein, except that a fidu-ciary representative of the estate of a lawyer may hold the stock or interest of the lawyer for a reasonable time during administration;

(2) a nonlawyer is a corporate director or officer thereof; or(3) a nonlawyer has the right to direct or control the profes-

sional judgment of a lawyer.6. V.T.C.A., Govt. Code T. 2, Subt. G App. A-1 (Texas State Rules of

Disciplinary Procedure), Disc. Proc., 1.06 (W) (“Definitions,” “Profes-sional Misconduct” defined by “W”):

W. “Professional Misconduct” includes:1. Acts or omissions by an attorney, individually or in concert

with another person or persons, that violate one or more of the Texas Disciplinary Rules of Professional Conduct.

2. Attorney conduct that occurs in another state or in the District of Columbia and results in the disciplining of an attorney in that other jurisdiction, if the conduct is Professional Miscon-duct under the Texas Disciplinary Rules of Professional Conduct.

3. Violation of any disciplinary or disability order or judg-ment.

4. Engaging in conduct that constitutes barratry as defined by the law of this state.

5. Failure to comply with Rule 13.01 of these rules relating to notification of an attorney’s cessation of practice.

6. Engaging in the practice of law either during a period of suspension or when on inactive status.

7. Conviction of a Serious Crime, or being placed on proba-tion for a Serious Crime with or without an adjudication of guilt.

8. Conviction of an Intentional Crime, or being placed on probation for an Intentional Crime with or without an adjudica-tion of guilt.

7. State ex rel. Oklahoma Bar Ass’n v. Mothershed, 2011 OK 84, n. 9, 264 P.3d 1197, 1204, citing authority including State ex rel. Oklahoma Bar Ass’n v. Heinen, 2002 OK 81, ¶ 4, 60 P.3d 1018, 1019 (Pursuant to Rule 7.7 of the Rules Governing Disciplinary Proceedings a lawyer may be professionally disciplined by this Court because of the lawyer’s profes-sional discipline by the highest court of another state or a federal court.), and State ex rel. Oklahoma Bar Ass’n v. Patterson, 2001 OK 51, 28 P.3d 551 (paragraph number five (5) therein states Rule 7.7 “authorizes the Bar to initiate disciplinary proceedings in this state whenever dis-cipline has been imposed upon a lawyer by another state’s highest court or by a federal court.”).

8. 5 O.S.Supp.2015 Ch. 1, App. 1-A, Rules Governing Disciplinary Proceedings, Rule 7.7:

Disciplinary Action in Other Jurisdictions, as Basis for Discipline.(a) It is the duty of a lawyer licensed in Oklahoma to notify

the General Counsel whenever discipline for lawyer misconduct has been imposed upon him/her in another jurisdiction, within twenty (20) days of the final order of discipline, and failure to report shall itself be grounds for discipline.

(b) When a lawyer has been adjudged guilty of misconduct in a disciplinary proceeding, except contempt proceedings, by the highest court of another State or by a Federal Court, the General Counsel of the Oklahoma Bar Association shall cause to be transmitted to the Chief Justice a certified copy of such adju-dication within five (5) days of receiving such documents. The Chief Justice shall direct the lawyer to appear before the Supreme Court at a time certain, not less than ten (10) days after mailing of notice, and show cause, if any he/she has, why he/she should not be disciplined. The documents shall constitute the charge and shall be prima facie evidence the lawyer committed the acts therein described. The lawyer may submit a certified copy of transcript of the evidence taken in the trial tribunal of the other jurisdiction to support his/her claim that the finding therein was not supported by the evidence or that it does not furnish sufficient grounds for discipline in Oklahoma. The law-yer may also submit, in the interest of explaining his/her con-duct or by way of mitigating the discipline which may be imposed upon him/her, a brief and/or any evidence tending to mitigate the severity of discipline. The General Counsel may respond by submission of a brief and/or any evidence support-ing a recommendation of discipline.

9. 5 O.S.Supp.2015 Ch. 1, App. 1-A, R.G.D.P., Rule 7.7(b), supra, at note 8. The 2011 version of Rule 7.7(b) was amended by Order of the Court on Sept. 30, 2014. 2014 OK 82 (S.C.B.D. 6177). The amendment requires the General Counsel of the Oklahoma Bar Association to transmit documents showing respondent’s adjudication of misconduct in another jurisdiction to this Court within five days of General Coun-sel receiving the documents. Compare the 2011 and 2015 versions of Rule 7.7(b). The Rule 7.7(b) procedure providing an opportunity for a respondent to appear and challenge the foreign adjudication, or explain his or her conduct and mitigate discipline remained unchanged by the 2014 amendment.

10. State ex rel. Oklahoma Bar Ass’n v. Whitebrook, 2010 OK 72, ¶ 21, 242 P.3d 517, 522.

11. 12 O.S.Supp.2015 Ch. 15, App. 1, Okla. Sup. Ct. Rule 1.4(g)(2) (amended by Order, 2013 OK 67, eff. August 1, 2013): “Orders and notices required to be mailed to parties will be mailed on the date shown by the Clerk’s file stamp unless otherwise indicated, and such date will serve as notice of the date of mailing.” See State ex rel. Okla-homa Bar Ass’n v. Offill, infra, at note 12, and State ex rel. Oklahoma Bar Ass’n v. Haave, infra, at note 13 (notice to respondents by mail when they have failed to make an appearance).

12. State ex rel. Oklahoma Bar Ass’n v. Offill, 2014 OK 27, ¶¶ 2, 5, 324 P.3d 406, 407 (in addition to using respondent’s official Bar Association roster address the Court also used respondent’s address for his incar-ceration when respondent failed to make an appearance in the pro-ceeding).

13. State ex rel. Oklahoma Bar Ass’n v. Haave, 2012 OK 92, ¶ 13, 290 P.3d 747, 751 (notices were mailed to respondent’s roster address in a proceeding where respondent did not make an appearance).

14. State ex rel. Oklahoma Bar Ass’n v. Godlove, 2013 OK 38, ¶ 2, 318 P.3d 1086, 1087-1088.

15. 5 O.S.Supp.2015 Ch. 1, App. 1-A, R.G.D.P., Rule 7.7 (b) at note 8 supra.

16. State ex rel. Oklahoma Bar Ass’n v. Rymer, 2008 OK 50, ¶ 4, 187 P.3d 725, 726.

17. State ex rel. Oklahoma Bar Ass’n v. Wintory, 2015 OK 25, ¶ 14, 350 P.3d 131, 135.

18. State ex rel. Oklahoma Bar Ass’n v. Albert, 2007 OK 31, ¶ 11, 163 P.3d 527, 532-533.


19. State ex rel. Oklahoma Bar Ass’n v. Wintory, 2015 OK 25, ¶ 23, 350 P.3d at 136, citing State ex rel. Oklahoma Bar Ass’n v. Knight, 2014 OK 71, ¶ 14, 330 P.3d 1216.

20. State ex rel. Oklahoma Bar Ass’n v. Mansfield, 2015 OK 22, ¶ 45, 350 P.3d 108, 122.

21. 5 O.S.2011 Ch. 1, App. 3-A, Rule 1.15, Safekeeping property, states in parts (a), (d) & (e):

(a) A lawyer shall hold property of clients or third persons that is in a lawyer’s possession in connection with a representa-tion separate from the lawyer’s own property. Funds shall be kept in a separate account maintained in the state where the lawyer’s office is situated, or elsewhere with the written consent of the client or third person.

(d) Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. Except as stated in this Rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property.

(e) When in connection with a representation, a lawyer pos-sesses funds or other property in which both the lawyer and another person claim interests, the funds or other property shall be kept separate by the lawyer until there is an accounting and severance of their interests. If a dispute arises concerning their respective interests, the portion in dispute shall be kept separate by the lawyer until the dispute is resolved, and the undisputed portion of the funds shall be promptly distributed.

22. State ex rel. Oklahoma Bar Ass’n v. Hill, 2012 OK 66, 281 P.3d 1264, 1273.

23. State ex rel. Oklahoma Bar Ass’n v. Meek, 1994 OK 118, 895 P.2d 692, 698 (commingling takes place when client monies are combined with the attorney’s personal funds, and conversion occurs when a lawyer applies a client’s money to a purpose other than that for which it was entrusted to the lawyer).

24. State ex rel. Oklahoma Bar Ass’n v. Combs, 2007 OK 65, ¶ 37, n. 57, 175 P.3d 340, 351-352 (note listing opinions imposing disbarment, sus-pensions two years and one day, four months, twelve months, and a public censure). See also State ex rel. Oklahoma Bar Ass’n v. Parsons, 2002 OK 72, 57 P.3d 865, (suspension for one year for commingling and conversion of funds by improperly taking money entrusted for a spe-cific purpose and applying it toward a claimed attorney fee).

25. State ex rel. Oklahoma Bar Ass’n v. Knight, 2014 OK 71, ¶ 6, 330 P.3d 1216, 1219 (comparing the Texas provisions with those in Okla-homa, including O.R.P.C., Rules 1.1, 1.3, 1.4). See also State ex rel. Okla-homa Bar Ass’n v. Benefield, 2005 OK 75, 125 P.3d 1191 (although not a reciprocal discipline matter, the Court imposed a one-year suspension where lawyer’s conduct included neglect and a failure to communi-cate).

26. State ex rel. Oklahoma Bar Ass’n v. Martin, 2010 OK 66, ¶¶ 12-14, 240 P.3d 690, 697-699.

27. 5 O.S.2011 Ch. 1, App. 3-A, O.R.P.C., Rule 5.3:With respect to a nonlawyer employed or retained by or

associated with a lawyer:(a) a partner, and a lawyer who individually or together with

other lawyers possesses comparable managerial authority in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person’s conduct is compatible with the professional obligations of the lawyer;

(b) a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the per-son’s conduct is compatible with the professional obligations of the lawyer; and

(c) a lawyer shall be responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if:

(1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved; or

(2) the lawyer is a partner or has comparable managerial authority in the law firm in which the person is employed, or has direct supervisory authority over the person, and knows of the conduct at a time when its consequences can be avoided or miti-gated but fails to take reasonable remedial action.

28. 5 O.S.2011 Ch. 1, App. 3-A, O. R. P. C., Rule 5.5 (a): “A lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction, or assist another in doing so.”

29. 5 O.S.2011 Ch. 1, App. 3-A, O.R.P.C., Rule 8.4(a): “It is profes-sional misconduct for a lawyer to: (a) violate or attempt to violate the

Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;”

30. State ex rel. Oklahoma Bar Ass’n v. Reynolds, 2012 OK 95, 289 P.3d 1283.

31. In the Matter of the Suspension of Members of the Oklahoma Bar Association, 2016 OK 64 (June 6, 2016), (Exhibit A).

We note complainant initially stated respondent had been sus-pended for nonpayment of dues in addition to failure to satisfy her M.C.L.E. requirements. Complainant subsequently withdrew its state-ment concerning respondent’s nonpayment of her Bar dues as a factu-ally incorrect statement.

32. 5 O.S.Supp.2015 Ch. 1, App. 1-A, R.G.D.P., Rule 7.7(a) note 8 supra.

33. State ex rel. Oklahoma Bar Ass’n v. Demopolos, 2015 OK 50, ¶ 40, 352 P.3d 1210, 1222.

34. State ex rel. Oklahoma Bar Ass’n v. Demopolos, 2015 OK 50, ¶ 40, 352 P.3d at 1222.

2016 OK 81

STATE Of OKLAHOMA ex rel. OKLAHOMA BAR ASSOCIATION,

Complainant, v. KATHRYN KIMBERLEE DICKSON, Respondent.

SCBD 6375. June 28, 2016

¶0 ORDER APPROVING RESIGNATION fROM OKLAHOMA BAR ASSOCIA-TION PENDING DISCIPLINARY PRO-CEEDINGS

¶1 Before this Court is the affidavit of the respondent, Kathryn Kimberlee Dickson, filed pursuant to Rule 8.1 of the Rules Governing Disciplinary Proceedings (RGDP), 5 O.S.2011, ch. 1, app. 1-A, requesting that she be allowed to resign her membership in the Oklahoma Bar Association (OBA) and relinquish her right to practice law. The OBA moves that this Court approve this resignation.

¶2 The respondent was admitted to member-ship in the Oklahoma Bar Association on Octo-ber 6, 1983. On March 28, 2016, she submitted her affidavit of resignation pending investiga-tion of a disciplinary proceeding.

¶3 The Record submitted by the Oklahoma Bar Association reveals that The District Attor-ney for Tulsa County charged the respondent with the crime of Financial Exploitation of an Elderly Person, a felony. Count 1 alleged that between June 2013, and January 2014, the respondent financially exploited her mother, born April 3, 1938, by writing checks from her mother’s bank accounts and using her moth-er’s credit cards without permission. An affida-vit from a Tulsa Police Department detective alleged that the amount taken by the respon-dent was $63,985.44. The allegation would constitute violations of Rule 1.3, RGDP, 5 O.S. 2011, ch. 1, app. 1-A, Discipline for Acts Con-trary to Prescribed Standards of Conduct; and Rules 8.4(b) and 8.4(c) of the Oklahoma Rules of


Professional Conduct, 5 O.S.2011 ch. 1, app. 3-A, (Amended by order of the Supreme Court, 2007 OK 22; effective January 1, 2008). Misconduct, which includes committing a criminal act that reflects adversely on the lawyer’s honesty, and engaging in conduct involving dishonesty, fraud, deceit or misrepresentation.

¶4 The respondent acknowledges that she is aware that a Notice of Felony Plea of Guilty and Deferment is currently pending before this Court in State ex rel. Oklahoma Bar Ass’n v. Kath-ryn Kimberlee Dickson, OBAD 2091, SCBD 6375, and that these proceedings were filed pursuant to Rule 7 of the RGDP. The respondent entered a plea of guilty to the charge on March 14, 2016. On that date, she received a six years and six months deferred sentence, was placed on supervised probation for two years, and or-dered to make restitution of $15,700.00. The trial court also ordered her to pay court costs, victim’s compensation assessment, and any applicable fines.

¶5 The respondent’s affidavit regarding her resignation pending disciplinary proceedings states:

a. Her resignation is freely and voluntarily given without coercion or duress, and she is aware of the consequences of submitting her resignation;

b. She is aware of the grievance, OBAD 2091, filed against her, that the OBA has the burden of proving the allegations against her, and that approval of her resignation is discretionary with this Court;

c. She is familiar with and agrees to comply with Rule 9.1 of the RGDP and acknowl-edges and agrees, as a prerequisite to rein-statement, to comply with Rule 11 of the RGDP and that she will make no applica-tion for reinstatement prior to the expira-tion of five (5) years from the effective date of the order approving this Resignation Pending Disciplinary Proceedings;

d. She acknowledges that the Client Secu-rity Fund may receive claims from her for-mer clients and agrees to reimburse the Fund for the principal amounts and statu-tory interest for claims which it approves and pays as a prerequisite to her reinstate-ment to the practice of law;

e. She acknowledges that the OBA has incurred costs in the investigation of the

disciplinary proceeding against her but that the OBA will recommend that the imposition of costs against her be waived; and

f. She has surrendered his OBA member-ship card to the Office of the General Coun-sel.

¶6 Pursuant to Rules 8.1 and 8.2 of the RGDP, this Court finds:

a. The respondent’s resignation from the OBA is freely and voluntarily tendered without coercion or duress, and she is fully aware of the consequences of submitting her resignation;

b. The respondent is subject to discipline by this Court under Rule 6 of the RGDP and has knowingly waived her right to appear before this Court to show cause why she should not be disciplined;

c. The respondent’s resignation pending disciplinary proceedings is in compliance with all the requirements set forth in Rule 8.1 of the RGDP and should be accepted;

d. The OBA has not sought payment of the costs incurred in the investigation of this matter; and

e. The respondent’s OBA number is 10456 and her official roster address, as shown by OBA records, is Kathryn Kimberlee Dick-son, 512 S. Wheeling, Tulsa, Oklahoma 74104.

¶7 IT IS THEREFORE ORDERED that the OBA’s application is approved and the respon-dent’s resignation is accepted and effective upon the filing of this order in the Office of the Clerk of the Appellate Courts.

¶8 IT IS FURTHER ORDERED that the respondent’s name be stricken from the Roll of Attorneys and that she make no application for reinstatement to membership in the Oklahoma Bar Association prior to the expiration of five years from the effective date of this order. See RGDP, Rules 8.2 and 11.1.

¶9 IT IS FURTHER ORDERED that the respondent shall notify all of her clients having legal business pending with her of her inability to represent them and of the necessity for promptly retaining new counsel by certified mail within twenty days pursuant to Rule 9.1 of the RGDP. The respondent is also ordered to return all client files and refund unearned fees.


As a condition of reinstatement, the respondent shall reimburse the Client Security Fund for any monies expended because of her malfeasance or nonfeasance. See RGDP, Rule 11.1(b).

¶10 DONE BY ORDER OF THE SUPREME COURT IN CONFERENCE this 27th day of JUNE, 2016.

/s/ Douglas L. CombsVice Chief Justice

ALL JUSTICES CONCUR

2016 OK 82

In re Claim of: A. Todd Holliman, Petitioner, v. Twister Drilling Co., Respondent, and

Compsource Oklahoma, Insurance Carrier.

Case No. 113,305. June 28, 2016As Corrected: June 29, 2016


DIVISION IV

¶0 Worker sought reversal of an order of the Workers’ Compensation Court of Existing Claims’ three-judge panel which vacated the trial tribunal’s award of benefits. The Court of Civil Appeals held that Worker’s accident did not fall under any exceptions to the going and coming rule.

COURT OF CIVIL APPEALS OPINION VACATED; ORDER OF THREE JUDGE PANEL VACATED; AWARD OF TRIAL

TRIBUNAL SUSTAINED.

G. Todd Ralstin, Oklahoma City, Oklahoma for Petitioner.

Cynthia S. Dugger, Shdeed & Dugger, Oklaho-ma City, Oklahoma for Respondent.

COLBERT, J.

¶1 The question presented is whether Work-er’s injury is compensable under any of the exceptions to the going and coming rule. This Court holds that Worker’s injury is a compen-sable injury under the travel exception to the going and coming rule. Therefore, Worker is entitled to benefits.

BACKGROUND AND PROCEDURAL HISTORY

¶2 A. Todd Holliman (Worker) worked as a Floor Hand on a four man crew for Twister Drilling Company (Employer) on a drilling rig. Worker lived in Holdenville, Oklahoma and

the rig was located approximately forty miles away in Maud, Oklahoma. Three crews worked eight hours each to service the well 24 hours a day, seven days a week. Employer had no housing at the drill site, therefore; employees were required to find transportation to and from the drill site. Employer paid travel pay ($60 - $80 depending on the distance traveled) to the crew. Worker stated that the driller in charge was the person who actually received the travel pay, however; with his crew the driller in charge elected to rotate the travel pay equally among everyone on the crew. There was a “dog house” at the drill site where the crews could store their work equipment, if they chose to do so. At the time of the accident, Worker was traveling with his hard hat, work clothes, gloves, and safety glasses.

¶3 On May 15, 2013, Worker and his supervi-sor were traveling home from the drill site after completing their shift when they were involved in a double fatality car crash. Worker’s supervi-sor was killed as was the driver of the other vehicle. The car belonged to Worker but his supervisor was driving. Worker was a passenger and was sleeping at the time of the collision.

¶4 On August 30, 2013, Worker filed a Form 3 alleging he sustained a single-event injury to his neck, back, left arm, and psychological overlay arising from injuries sustained from the motor vehicle accident. In its Form 10 Answer, first filed on October 2, 2013, Employ-er admitted that Worker was an employee but denied the injuries were compensable or work-related because Worker was not engaged in the performance of his job duties when he was injured. The trial tribunal found that Worker’s injuries were compensable and work related. It awarded Worker benefits. The tribunal found that under the circumstances the accident came within the special task exception to the general going and coming rule. Employer appealed. The three-judge panel reversed the order find-ing that Worker was not injured while per-forming unusual duties and therefore was not entitled to benefits. Worker appealed and the Court of Civil Appeals (COCA) sustained the three-judge panel’s denial of benefits finding that not only was Worker not performing a spe-cial task, but there was no agreement between the crew members to share the travel pay.

STANDARD OF REVIEW

¶5 “The date of injury has long been the point in time in workers’ compensation cases


when rights of the parties become established, including when a claim must be filed; which law to use for determining benefits, and a schedule of compensation to determine the amount of benefits a claimant is entitled to receive.” Williams Co., Inc. v. Dunkelgod, 2012 OK 96, ¶ 14, 295 P.3d 1107, 1111. The law in effect on the date of injury, May 15, 2013, was the Workers’ Compensation Code, Okla. Stat. tit. 85, §§ 1 through 413 (Supp. 2013). The appellate standard of review, § 340(D), states that this Court may “modify, reverse, remand for rehearing, or set aside the order or award upon any of the following grounds:

1. The court acted without or in excess of its powers;

2. The order or award was contrary to law;

3. The order or award was procured by fraud; or

4. The order or award was against the clear weight of the evidence.

Okla. Stat. tit. 85.1

ANALYSIS

¶6 “A compensable work-related injury must both (1) occur in the course of and (2) arise out of the worker’s employment.” Veith v. Ogburn, 2006 OK CIV APP 75, ¶ 12, 136 P.3d 1080, 1082. These elements are distinct and both must be met for an injury to qualify under the Workers’ Compensation Code. “The phrase ‘in the course of employment’ refers to the time, place or circumstances of the injury.” Id. The Work-er’s accident “must occur within the period of employment at a place where the workman reasonably may be and while he is reasonably fulfilling a duty of his employment or engaged in doing something incidental thereto.” Barn-hill v. Smithway Motor Express, 1999 OK 82, ¶11, 991 P.2d 527, 531.¶7 Whether an injury arises out of employment depends upon a “causal relationship between the act engaged in at the time injury occurs and the require-ments of employment.” Veith, 2006 OK CIV APP 75, ¶ 12, 136 P.3d at 1082. “To meet the arising out of prong it must appear to the ratio-nal mind, upon considering all the circum-stances, that a causal connection exists between the condition(s) under which the work is to be performed and the resulting injury.” Barnhill, 1999 OK 82, ¶ 12, 991 P.2d at 531.¶8 Generally, injuries incurred while going to or coming from work are not compensable injuries. “The

general rule concerning such off-premises inju-ries primarily results from the fact that going to and coming from work is the product of the employee’s own decision of where he desires to live, a matter ordinarily of no interest to the employer.” Id., ¶ 15, 991 P.2d at 532. However, the Court has carved out several exceptions to this rule; such as: (1) performing (or going to or coming from performing) a special task out-side of regular hours and at the employer’s request; Harris v. LaQuinta, 1997 OK 50, 937 P.2d 89; (2) Employer has agreed to provide transportation for employees to and from work or pay travel expenses; Christian v. Nicor Drill-ing Co., 1982 OK 76,¶ 4, 653 P.2d 185, 186; (3) transporting supplies owned by the employer and needed to complete work duties or tasks; Weatherbee Elec. Co. v. Duke, 1955 OK 322, 294 P.2d 298; or (4) Employer owns or controls the area where injury occurs; Turner v. B Sew Inn, 2000 OK 97, 18 P.3d 1070.

¶9 In the case at bar, the record shows that Employer acknowledges that Worker was an employee at the time of the injury, but con-tends that because the accident happened while Worker was going home from work, the injury is not compensable. The trial tribunal disagreed and held that Worker was on a spe-cial task for Employer thus his injuries were compensable. The three-judge panel reversed the trial court’s order finding that Worker was not performing a special task and that this acci-dent did not qualify under any other exception to the going and coming rule.

¶10 Both courts acknowledged that Employ-er pays travel pay to its employees but deter-mined that since Worker was not the one who received the travel pay that day he did not qualify under any of the exceptions to the going and coming rule. This is incorrect. Travel pay is used as an incentive by employers to entice prospective or current employees into accepting a job or job assignment. It is well understood that “in certain situations both the employer and the employee derive mutual benefit from the inclusion of travel in the course of employment.” Christian, 1982 OK 76, ¶ 4, 653 P.2d 185, 186. There is no case law to support the argument that Worker must have received travel pay each day of his job assign-ment or on a particular day of his assignment. The record indicates that travel pay is paid to the crew and this particular crew agreed to rotate the travel pay accrued each week among each member of the crew. While the day of the


accident was not Worker’s day to receive the travel pay, he was still a member of the crew and was therefore entitled to travel pay.

¶11 In this matter, the three-judge panel and COCA held that the “special task” exception does not apply. However, “special task” is not the only exception to the general rule that inju-ries sustained while going and coming to work are not compensable. The applicable exception is found in Christian, 1982 OK 76, ¶ 4, 653 P.2d at 186, which recognized an exception:

when the employer provides transporta-tion to the job site or whenever the nature of the work itself creates a necessity for travel. These exceptions rest on the law’s awareness that in certain situations both the employer and the employee derive mutual benefit from the inclusion of travel in the course of employment. This is par-ticularly true of the oil industry. When drilling sites are at locations remote from population centers, transportation is com-monly provided by the employer for the mutual benefit of all parties.

(Emphasis added). To resolve the dispute in Christian, this Court asked “whether [the injured employees’] use of a self-provided vehicle was brought about by circumstances known to, and approved by, the employer . . ..” Id., ¶ 6, 653 P.2d at 187. The Christian Court concluded that the injured employees “were on a mission [employer] instructed them to pursue, doing precisely what he intended for them to do in order to meet their job require-ments.” Id., ¶ 9, 653 P.2d at 187.

¶12 This matter is factually on all fours with Christian and its well-recognized exception to the going and coming rule applies here. In both cases, “the workers proceeded to the work-place in their personal vehicle on specific instructions from their supervisor.” Id., ¶ 3, 953 P.2d 186. Thus, because Employer compensat-ed the employees for travel expenses, an excep-tion to the going and coming rule, Worker’s injuries are compensable. “If the trial court reaches the correct result but for the wrong reason, its judgment is not subject to reversal. Rather, the Court is not bound by the trial court’s reasoning and may affirm the judgment below on a different legal rationale.” Hall v. GEO Grp., Inc., 2014 OK 22, ¶ 17, 324 P.3d 399, 406 (footnote omitted).

CONCLUSION

¶13 There is overwhelming evidence in the record to support the trial court’s finding that Worker’s injuries occurred in the course of and arose out of his employment. Worker’s injuries are compensable and the circumstances qualify under an exception to the going and coming rule. Worker is entitled to all benefits awarded to him in the trial tribunal’s award.

COURT OF CIVIL APPEALS OPINION VACATED; ORDER OF THREE JUDGE PANEL VACATED; AWARD OF TRIAL

TRIBUNAL SUSTAINED.

CONCUR: Reif CJ, Combs VCJ, Kauger, Watt, Edmondson, Colbert, and Gurich, JJ.

DISSENT: Winchester, Taylor, JJ.

COLBERT, J.

1. This standard was repealed by Laws 2013, SB 1062, ch. 208, § 171 (eff. February 1, 2014). It was recodified at Okla. Stat. tit. 85A, § 78 (eff. February 1, 2014).


18 OBA Appellate Practice Section meeting; 11:30 a.m.; Oklahoma Bar Center, Oklahoma City with videoconference; Contact Mark Koss 405-720-6868

19 OBA Women in Law Committee meeting; 4 p.m.; Oklahoma Bar Center, Oklahoma City with teleconference; Contact Ann E. Keele 918-592-1144 or Reign Grace Sikes 405-419-2657

20 OBA Indian Law Section meeting; 12 p.m.; Oklahoma Bar Center, Oklahoma City with tele-conference; Contact Deborah Reed 918-728-2699

22 OBA Board of Governors meeting; 10 a.m.; Oklahoma Bar Center, Oklahoma City; Contact John Morris Williams 405-416-7000

23 OBA Young Lawyers Division meeting; 10 a.m.; Oklahoma Bar Center, Oklahoma City; Contact Bryon Will 405-308-4272

28 OBA Professionalism Committee meeting; 4 p.m.; Oklahoma Bar Center, Oklahoma City with teleconference; Contact Patricia Podolec 405-760-3358

2 OBA Government and Administrative Law Section meeting; 4 p.m.; Oklahoma Bar Center, Oklahoma City with teleconference; Contact Michael Mannes 405-473-0352

4 OBA Lawyers Helping Lawyers Discussion Group; Office of Tom Cummings, 701 NW 13th St., Oklahoma City, OK 73012; Contact Jeanne M. Snider 405-366-5466 or Hugh E. Hood 918-747-4357

5 OBA Alternative Dispute Resolution Section meeting; 12 p.m.; Oklahoma Bar Center, Oklahoma City with videoconference; Contact John H. Graves 405-684-6735

11 OBA Master Lawyers Section meeting; 12 p.m.; Oklahoma Bar Center, Oklahoma City with videoconference; Contact Ronald Main 918-742-1990

12 OBA Access to Justice Committee meeting; 11 a.m.; Oklahoma Bar Center, Oklahoma City with teleconference; Contact Michael Speck 405-205-5840

OBA Law-related Education Committee meeting; 12 p.m.; Oklahoma Bar Center, Oklahoma City with teleconference; Contact Professor Paul Clark 405-208-6303 or Brady Henderson 405-524-8511

OBA Family Law Section meeting; 3 p.m.; Oklahoma Bar Center, Oklahoma City with video-conference; Contact Luke Barteaux 918-585-1107

15 OBA Appellate Practice Section meeting; 11:30 a.m.; Oklahoma Bar Center, Oklahoma City with videoconference; Contact Mark Koss 405-720-6868

16 OBA Bench and Bar Committee meeting; 12 p.m.; Oklahoma Bar Center, Oklahoma City with teleconference; Contact Judge David B. Lewis 405-556-9611 or David Swank 405-325-5254

OBA Women in Law Committee meeting; 4 p.m.; Oklahoma Bar Center, Oklahoma City with teleconference; Contact Ann E. Keele 918-592-1144 or Reign Grace Sikes 405-419-2657

17 OBA Indian Law Section meeting; 12 p.m.; Oklahoma Bar Center, Oklahoma City with tele-conference; Contact Deborah Reed 918-728-2699

18 OBA Diversity Committee meeting; 12 p.m.; Oklahoma Bar Center, Oklahoma City; Contact Tiece Dempsey 405-609-5406

July

August

CALENDAR OF EVENTS


1975 OBA President Clarence Dewey “C.D.” Northcutt of Ponca City died June 23. He was born in Guin, Alabama, and grew up on a sharecropper farm in Lex-ington where he attended Lone Star School and later Lexington High School. Following his high school graduation, he attended OU and graduated from the OU College of Law in 1938.

That same year, Mr. Northcutt moved to Ponca City to practice law. Mr. North-cutt’s law practice was interrupted in 1941 when he served in World War II. During the war he served in the Europe-an Theatre — including the invasion of Utah Beach — as part of the VII Army, field Artillery. During his military ser-vice, he received a Bronze Star, Air Medal with Clusters and five Battle Stars as well as attaining the rank of lieuten-

ant colonel. After serving, he returned to practice law in Ponca City and said that his proudest moment in his law practice was when his brother Paul joined him as a partner in 1951.

Mr. Northcutt was a fellow of the American College of Trial Lawyers and the International Academy of Trial Lawyers. In addition to being a past president of the OBA, he was a member of the International Society of Barristers and was admitted to practice before the U.S. Supreme Court. He held numerous leader-ship positions at OU, including serving on the Board of Visitors of the Law Cen-ter, as a trustee of the Lew Wentz Foundation and in the Academy of University Fellows. His honors include being named Ponca City’s Outstanding Citizen in 1982 and being inducted into the Oklahoma Hall of Fame in 2001 where he was called “the quintessential trial lawyer.” He also held a number of local leader-ship roles including the chairman of the Ponca City Chamber of Commerce and president of the Kay County Bar Association.

In MeMorIaM:1975 OBA President

Clarence Dewey “C.D.” Northcutt 1916 – 2016


IN MEMORIAM

Amos Earl Black III of Anadarko died May 30.

He was born Jan. 14, 1943, in San Francisco and later moved to Oklahoma. A 1961 graduate of Cushing High School, he attended OSU for business and then went on to obtain his J.D. from the TU College of Law in 1969. following law school, Mr. Black served his country in Vietnam from 1970-1971 and was honorably dis-charged as a second lieuten-ant. He moved to Anadarko in 1971, serving as the assistant district attorney before going into private practice. He was a member of the Bear Clan with-in the Sac and Fox Nation of Oklahoma, whom he served as the tribal attorney and chief justice of the tribal supreme court. He enjoyed fishing, hunting, following OSU athlet-ics and spending time with his family and friends.

Mary Lu Tracewell Gordon of Oklahoma City died

June 13. She was born Oct. 28, 1935, in Kansas City, Missouri, and graduated from Northeast High School in 1953. She attended OU for her under-graduate and graduate degrees and later earned her J.D. from the OCU School of Law in 1975. She served as an assistant municipal counselor for Okla-homa City from 1977 to 1982 and again from 1989 to 2005.

During the interim, she was in private practice with her hus-band. She then served for three years as a federal judicial law clerk to Judges Lee West and David Russell. She is survived by her husband, Dell Gordon, and son, Kevin Gordon, both OBA members. Donations may be made to the Mary Lu Gor-don Memorial Fund at the Oklahoma City Community Foundation, P.O. Box 1146, Oklahoma City, OK 73101-1146 or online at www.occf.org.

Nellie Catherine Perry of Kiowa County, Kansas,

died May 28. She was born April 16, 1929, in Kiowa Coun-ty, Kansas, and graduated from Hobart High School in 1946. She earned a bachelor’s degree from OSU in 1950. She was a newspaper reporter and then taught junior high in Midwest City and Hobart. At age 50, she started law school and earned her J.D. from the OU College of Law in 1982. After gradua-tion she joined her husband in the offices of Perry Gentry Perry and Marsh. She retired in 2007. She was an acclaimed bankruptcy attorney and was chosen as a trustee on the Oklahoma Bar Foundation. She also served on the Oklahoma Board of Bar Examiners and helped organize Women’s Law Day at OU. She provided legal services pro bono for Girl

Scouts of America, the Youth Commission in Hobart and the Great Plains Youth and Family Services. She received the Mary Emma Wilson Award for outstanding work in the pre-vention of child abuse in Okla-homa. In lieu of flowers, dona-tions may be sent to Great Plains Youth and Family Ser-vices, the Hobart Public Library, the Kiowa County Historical Society or your favorite charity.

Jesse Dan Swift of Mannford died March 23 in Tulsa.

He was born Oct. 5, 1932, in Mannford. He had a private practice in Sand Springs and was primarily involved in real estate and trust law. He also served as city attorney for Mannford for many years before it was moved to make way for Keystone Lake and the Keystone Dam. He was a long-time resident of Mannford and very active in community affairs. Mr. Swift was also an officer for the Mannford Mu-seum and a member of the Mannford Masonic Lodge. He was known to play the banjo and was a pilot who loved to fly. Memorial gifts may be given in Jesse’s memory to the Shriner’s Hospital for Chil-dren, 2900 Rocky Point Dr., Tampa, Florida, 33607.


2016 OK CR 14

BRIAN CHRISTOPHER CRIPPS, Appellant, vs. THE STATE Of OKLAHOMA, Appellee.

No. f-2015-209. June 30, 2016

SUMMARY OPINION

SMITH, PRESIDING JUDGE:

¶1 Brian Christopher Cripps was tried by jury and convicted of Manslaughter, Second Degree, Automobile, in violation of 21 O.S.2011, § 716, in the District Court of Tulsa County, Case No. CF-2012-4519.1 In accordance with the jury’s recommendation the Honorable Jeffer-son D. Sellers sentenced Cripps to four (4) years imprisonment and a fine of $1000. Cripps appeals from this conviction and sentence. This court heard oral argument in this matter on June 7, 2016.

¶2 Cripps raises three propositions of error in support of his appeal:2

I. It was reversible error for the court to admit Officer Stephens’ opinion that the physical evidence proved Mr. Cripps was driving the vehicle.

II. Mr. Cripps is entitled to a new trial because the District Court should have quashed the blood alcohol content evi-dence.

III. Mr. Cripps cannot be retried for man-slaughter – First Degree or Negligent Homicide as he was acquitted by the jury.

¶3 After thorough consideration of the entire record before us, including the original record, transcripts, exhibits and briefs, we find that the law and evidence do not require relief.

¶4 We find in Proposition I that the trial court did not abuse its discretion in admitting expert testimony from the State’s accident reconstruc-tion witness, Stephens. Day v. State, 2013 OK CR 8, ¶ 4, 303 P.3d 291, 295. An abuse of discre-tion is any unreasonable or arbitrary action made without proper consideration of the rel-evant facts and law, also described as a clearly erroneous conclusion and judgment, clearly against the logic and effect of the facts. Neloms v. State, 2012 OK CR 7, ¶ 35, 274 P.3d 161, 170. Expert opinion is admissible when it (1) is

based on sufficient facts or data; (2) is the prod-uct of reliable principles and methods; and (3) the witness has applied those principles and methods reliably to the facts of the case. 12 O.S.2011, § 2702.3 Stephens never testified that Cripps was driving the car at the time of the collision. He said that he would expect Cripps to be on the vehicle’s left side, he would expect the passenger to be on the right side, and that the decedent had been in the back seat. An expert may give an opinion on the ultimate issue, as long as he does not tell jurors what result to reach. 12 O.S.2011, § 2704; Day, 2013 OK CR 8, ¶ 11, 303 P.3d at 297. Stephens did not tell jurors what result to reach.

¶5 In making this claim Cripps mischarac-terizes Stephens’ expert opinion evidence. Stephens based his conclusion about Cripps’ location on forensic and crime scene evidence. Stephens did not give opinions on physics, forensic pathology, and bio-mechanics. Ste-phens had specialized training in accident reconstruction and traffic investigation, includ-ing homicide accidents. His training included training in mathematics, crime scene evidence and determination of location from wreckage and injuries. This area of expertise requires neither medical nor engineering qualifications. We are unpersuaded by Cripps’ cited authori-ty, which primarily consists of civil cases from other jurisdictions which do not address the issues in this case. Cripps also complains that Stephens’ opinions were based on speculation rather than evidence, and not reliable under 12 O.S.2011, § 2702. The record does not support these claims. This proposition is denied.

¶6 We find in Proposition II that the trial court did not err in admitting evidence of Cripps’ blood alcohol content. We review a trial court’s decision on a motion to suppress for abuse of discretion; where the issue is one of illegal search and seizure we defer to the trial court’s findings of fact unless they are clearly erroneous, and review legal conclusions de novo. State v. Alba, 2015 OK CR 2, ¶ 4, 341 P.3d 91, 92. Officers drew Cripps’ blood under Oklahoma’s implied consent statutes. Any driver who could be cited for an accident resulting in a person’s immediate death shall submit to alcohol testing as soon as practicable after the accident; the fact of the accident

Court of Criminal Appeals Opinions


serves as probable cause. 47 O.S.2011, § 10- 104(B). Section 10-104(B) applies to all drivers involved in fatality accidents, whether or not they are cited for a traffic offense or arrested at the scene. Bemo v. State, 2013 OK CR 4, ¶ 5, 298 P.3d 1190, 1191; Sanders v. State, 2002 OK CR 42, ¶ 11, 60 P.3d 1048, 1050; Guest v. State, 2002 OK CR 5, ¶ 8, 42 P.3d 289, 291.4

¶7 Cripps argues that § 10-104(B) is invalid under a recent United States Supreme Court case, Missouri v. McNeely, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013). He is mistaken. Missouri had an implied consent statute that provided for a nonconsensual blood draw whenever an officer reasonably believed an arrested person committed an offense while intoxicated or drugged. Mo Ann. Stat. § §577.020.1, 577.041 (West 2011). In McNeely, the Court determined that, where a driver is stopped and police sus-pect he is driving under the influence, the nat-ural metabolism of alcohol in the bloodstream does not constitute an exigency that always justifies an exception to the Fourth Amend-ment warrant requirement for nonconsensual blood testing. McNeely, 133 S.Ct. at 1556. The Court found that exigency must be determined case by case, based on the totality of the circum-stances. Id. The Court’s focus was its rejection of the claim that dissipation of alcohol from the bloodstream is, standing alone, an exigent cir-cumstance in every routine case of driving under the influence. Id. at 1561. For this reason the Court rejected Missouri’s per se rule.

¶8 There is a significant difference between § 10-104(B) and the section of the Missouri stat-ute at issue in McNeely. Oklahoma law creates a per se rule requiring nonconsensual blood testing of a driver involved in an accident who could be cited for a traffic offense, where the accident involves either a fatality or great bodily injury of any person, including the driver. 47 O.S.2011, § 10-104(B). Of all the Oklahoma statutes concerning blood tests for traffic offenses, whether consensual, nonconsensual, or with implied consent, § 10-104(B) is the only statute which applies in these very narrow cir-cumstances. The exigent circumstance justify-ing the per se rule in § 10-104(B) is the existence of great bodily injury or a fatality to persons including the driver. Put another way, § 10-104(B) does not depend solely on the dissi-pation of alcohol in the bloodstream over time as an exigent circumstance. Missouri’s implied consent statute contains a similar (though not identical) provision; however, there was nei-

ther an accident nor a fatality in McNeely and that provision was not used. The majority in McNeely rejected the claim that states needed a per se rule based on the dissipation of alcohol in the blood in order to promote enforcement of laws against drunk driving. The per se rule found unconstitutional in McNeely is simply a different rule from the per se rule in § 10-104(B), and the difference is material.

¶9 Cripps claims he should have had the right to revoke his implied consent when he regained consciousness. He relies on cases in which this Court held that, since an implied consent statute allowed a conscious person to refuse consent, an unconscious person must be afforded that same opportunity. Sartin v. State, 1980 OK CR 65, 617 P.2d 219; State v. Wood, 1978 OK CR 25, 576 P.2d 1181. However, neither of those cases refer to § 10-104(B), which does not contain a provision allowing a defendant, con-scious or unconscious, to refuse consent. 47 O.S.2011, § 10-104(B) (drivers subject to the statutory provision “shall” submit to drug and alcohol testing). Under that statute, Cripps had no right to revoke his implied consent. Cripps’ blood was legally taken under § 10-104(B). No warrant was necessary, and it is unnecessary for us to address Cripps’ arguments involving warrantless seizure and the exclusionary rule. The trial court did not abuse its discretion in denying Cripps’ motion to suppress, and this proposition is denied.5

¶10 We find in Proposition III that, because we found no error in the preceding proposi-tions, there is no question of a retrial. This proposition is moot.

DECISION

¶11 The Judgment and Sentence of the District Court of Tulsa County is AffIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Crimi-nal Appeals, Title 22, Ch.18, App. (2016), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

AN APPEAL FROM THE DISTRICT COURT OF TULSA COUNTY

THE HONORABLE JEFFERSON D. SELLERS, DISTRICT JUDGE

ATTORNEYS AT TRIAL

Robert Williams, Kensey Ruble, 1080 Boulder Towers, 1437 South Boulder Avenue, Tulsa, OK 74119-3640, Counsel for Defendant


Michelle Keely, Kevin Keller, Assistant District Attorneys, 500 S. Denver, Ste. 900, Tulsa, OK 74103, Counsel for the State

ATTORNEYS ON APPEAL

Neil D. Van Dalsem, Robert Scott Williams, Taylor, Ryan Minton Van Dalsem & Williams, P.C., 1437 South Boulder Avenue, Tulsa, OK 74119, Counsel for Appellant

E. Scott Pruitt, Attorney General of Oklahoma, Timothy J. Downing, Assistant Attorney Gen-eral, 313 NE 21st Street, Oklahoma City, OK 73105, Counsel for Appellee

OPINION BY: SMITH, P.J.LUMPKIN, V.P.J.: CONCUR IN RESULTJOHNSON, J.: CONCURLEWIS, J.: CONCURHUDSON, J.: CONCUR IN PART/DISSENT IN PART

LUMPKIN, VICE PRESIDING JUDGE: CONCURRING IN RESULT

¶1 I concur in affirming the judgment and sentence but cannot agree with the analysis that the majority uses to resolve the case.

¶2 As to Proposition One, I note that chal-lenges can be made which may require a Daubert/Kuhmo/Taylor evidentiary hearing to permit a party to show that an accepted scientific meth-od or principle is no longer valid.

¶3 Title 12 O.S.2011, § 2702 governs the admissibility of opinion testimony based upon scientific, technical or other specialized knowl-edge. Taylor v. State, 1995 OK CR 10, ¶ 14, 889 P.2d 319, 326. This Court adopted the United States Supreme Court’s analysis in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), as the proper method to address the admissibility of all types of scientific evidence. Id., 1995 OK CR 10, ¶ 16, 889 P.2d at 329. In Kumho Tire Co. v. Carmichael, 526 U.S. 137, 150-51, 119 S.Ct. 1167, 1175, 143 L.Ed.2d 238 (1999), the United States Supreme Court explained that the Daubert analysis is not limited to “scientific evidence” but applied to all novel expert testimony. We adopted Kumho in Harris v. State, 2000 OK CR 20, ¶ 9, 912 P.3d 489, 492-93. Harris v. State, 2004 OK CR 1, ¶ 29, 84 P.3d 731, 745.

¶4 Application of the Daubert standard is not limited to novel or unconventional techniques or methods. Id., 509 U.S. at 592 n. 11, 113 S.Ct. at 2796 n. 11 (“Of course, well-established propositions are less likely to be challenged

than those that are novel, and they are more handily defended.”); Day v. State, 2013 OK CR 8, ¶ 1, 303 P.3d 291, 300 (Lumpkin, J., concur-ring) (“Just because something has been accept-ed in the past does not mean it continues to meet the Daubert criteria for admissibility into evidence.”). Similarly, the plain language of 12 O.S.2011, § 2702 reveals that the requirements of relevance and reliability equally apply to both novel and accepted scientific principles and methods. See State v. Young, 1999 OK CR 14, ¶ 27, 989 P.2d 949, 955 (“[S]tatutes are to be construed according to the plain and ordinary meaning of their language.”).

¶5 This is not to say that a Daubert hearing is necessary in every case where a party seeks to introduce scientific, technical or other special-ized knowledge. Trial judges possess “the dis-cretionary authority needed both to avoid unnecessary ‘reliability’ proceedings in ordi-nary cases where the reliability of an expert’s methods is properly taken for granted, and to require appropriate proceedings in the less usual or more complex cases where cause for questioning the expert’s reliability arises.” Kum-ho, 526 U.S. at 152, 119 S.Ct. at 1176; See Gilson v. State, 2000 OK CR 14, ¶ 64, 8 P.3d 883, 907. Where an expert’s factual basis, data, principles, methods or their application are called suffi-ciently into question by competent evidence the trial judge must determine whether the prof-fered testimony meets the Daubert/Kuhmo stan-dard. Id., 526 U.S. at 149, 119 S.Ct. at 1175.

¶6 In the present case, the District Court did not abuse its discretion when it determined that the accident reconstruction expert’s opin-ions were relevant and reliable under § 2702. I agree that no relief is required.

¶7 As to Proposition Two, I concur with the majority’s conclusion that the trial court did not err in admitting evidence concerning Cripps’ blood alcohol concentration. I likewise agree that the United States Supreme Court’s opinion in Missouri v. McNeely, 569 U.S. ___, 133 S.Ct. 1552, 185 L.Ed.2d 698 (2013), did not render 47 O.S.2011, § 10-104(B) unconstitu-tional but it does bring its validity into ques-tion. Thus, I cannot agree with the majority’s determination that McNeely is inapplicable to the present case.

¶8 The Supreme Court in McNeely held that “in drunk-driving investigations, the natural dissipation of alcohol in the bloodstream does not constitute [a per se] exigency in every case


sufficient to justify conducting a blood test without a warrant.” McNeely, 133 S. Ct. at 1568. Instead, “[w]hether a warrantless blood test of a drunk-driving suspect is reasonable must be determined case by case based on the totality of the circumstances.” Id., 133 S.Ct. at 1563. A warrantless search may be reasonable when “‘there is compelling need for official action and no time to secure a warrant.’” Id., 133 S.Ct. at 1559 (quoting Michigan v. Tyler, 436 U.S. 499, 509, 98 S.Ct. 1942, 1949, 56 L.Ed.2d 486 (1978)). While McNeely expressly affirmed Schmerber v. California, 384 U.S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966), the Supreme Court clarified that its determination in Schmerber was strictly based on the facts of the case after consider-ation of all of the facts and circumstances of that particular case. Id., 133 S.Ct. at 1560, citing Schmerber, 384 U.S. at 772, 86 S.Ct. at 1836.

¶9 McNeely is applicable to the present case because § 10-104(B) provides for the adminis-tration of a drug and alcohol test to any driver of any vehicle involved in accident who could be cited for any traffic offense where said acci-dent resulted in death or great bodily injury. Section 10-104(B) does not require either a war-rant or exigent circumstances prior to the administration of a nonconsensual drug and alcohol test. Thus, it would appear that § 10-104(B) is contrary to the holding set forth in McNeely, unless the narrow grounds upon which a warrantless drug and alcohol test can be conducted is a sufficient narrowing under McNeely.

¶10 Although § 10-104(B) does not explicitly meet the requirements of McNeely, the statute can be applied in a constitutional manner. Mur-phy v. State, 2012 OK CR 8, ¶ 32, 281 P.3d 1283, 1292 (“[I]t is the duty of the courts, whenever possible, to harmonize acts of the Legislature with the Constitution.”). Requiring officers to only cause a nonconsensual blood draw in reli-ance upon either a warrant or exigent circum-stances allows § 10-104(B) to be construed as constitutional.

¶11 The majority contends that McNeely is not applicable to the present case because the Supreme Court noted with approval that a majority of states either prohibit nonconsensu-al blood testing or significantly restrict it to, for instance, cases involving an accident resulting in death or serious bodily injury. (citing McNeely, 133 S.Ct. at 1566-67). However, the cited passage is not part of the Supreme Court’s opinion. Instead, this passage is part of the

plurality opinion of Justices Sotomayor, Scalia, Ginsburg and Kagan. Justice Kennedy, who made up part of the majority opinion for the holding of the case, did not join this part of the opinion. Id., 133 S.Ct. at 1568-69. Instead, Jus-tice Kennedy emphasized “that every case be determined by its own circumstances” and explained that the Court, in due course, might find it appropriate and necessary to consider what rules, procedures and protocols that states and other governmental entities can adopt to meet the reasonableness requirements of the Fourth Amendment. Id., 133 S.Ct. at 1569 (Kennedy, J., concurring in part). Justices Rob-erts, Breyer and Alito did not join in any part of the majority opinion, however, they agreed that in the absence of a compelling need to pre-vent the imminent destruction of important evidence, an officer must seek a warrant before blood can be drawn. McNeely, 133 S.Ct. at 1569 (Roberts, C.J., concurring in part, dissenting in part). Accordingly, it is clear that the Supreme Court’s pronouncement in McNeely applies to the warrantless blood draw in the present case.

¶12 The circumstance is further complicated by our interpretation of the Oklahoma statute which the plurality of Justices in McNeely relied upon in reaching this conclusion. The plurality cited to Okla. Stat., Tit. 47, § 753 (West Supp.2013) as an example of a state placing significant restrictions as to when police offi-cers may obtain a blood sample despite a sus-pect’s refusal. McNeely, 133 S.Ct. at 1566 n. 9. It must be noted that in State v. Shepherd, 1992 OK CR 69, 840 P.2d 644, this Court construed § 753 so that it would harmonize with the require-ments of the Fourth Amendment.

Title 47 O.S.Supp.1988, § 753 allows an offi-cer to take blood against the objections of a conscious person whom he has placed under arrest when, “the investigating offi-cer has probable cause to believe that the person under arrest, while intoxicated, has operated his motor vehicle in such a man-ner as to have caused the death or serious physical injury to any other person or per-sons.” This statutory provision does not require the constitutional mandates set forth in Schmerber. However, although sec-tion 753 is not constitutionally adequate on its face, it may be applied in a way that satisfies constitutional requirements if the investigating officer only instructs that blood be drawn from the driver when the officer reasonably believes that under the


circumstances, any delay necessary to secure a warrant may result in the loss of evidence. Thus, the determination of whether section 753 has been applied in a constitutionally sound manner must be made on a case by case basis.

Shepherd, 1992 OK CR 69, ¶ 6, 840 P.2d at 646. For these reasons, it is inadvisable to put weight in the plurality’s language in McNeely.

¶13 McNeely requires that the finding of exi-gency be determined on a case-by-case basis review of the totality of the circumstances. Therefore, the determination of whether § 10-104(B) has been applied in a constitutionally sound manner must be made on a case by case basis.

¶14 In the present case, the trial court actu-ally conducted this review and determined that, under the totality of the circumstances, Officer Ohnesorge’s decision to cause Cripps’ blood to be drawn was reasonable and sup-ported by exigent circumstances. Noting that Cripps was unconscious and was scheduled to go into surgery, the trial court found that the officer’s decision to have blood drawn was necessary to avoid loss of this evidence and the officer had no time to secure a warrant. (1/ 23/14 Mtn. Tr. 68-69).1 As these facts clearly establish exigent circumstances, I find that the trial court did not abuse its discretion when it denied Cripps’ motion to suppress. No relief is required.

¶15 At this stage of the development of the law on this issue, judges, prosecutors, defense counsel and individuals who instruct law enforcement personnel regarding the methods to conduct Constitutional searches should emphasize the necessity to rely on the guide-lines of Schmerber v. California, supra, rather than the carte blanche language in our statute.

HUDSON, J., CONCURRING IN PART/ DISSENTING IN PART

¶1 In the constellation of cases embodied within this Court’s Fourth Amendment juris-prudence, today’s decision will surely be a fall-ing star. The majority opinion in this case is notable primarily for its faulty logic, its disre-gard of three separate decisions from the Unit-ed States Supreme Court which control this case and its indifference to our Fourth Amend-ment values. I concur in affirming the judg-ment and sentence but dissent to the majority opinion’s disregard in Proposition II of the

Fourth Amendment limitations placed on 47 O.S.2011, § 10-104(B) by clearly-established Supreme Court law.

¶2 The majority opinion acknowledges that 47 O.S.2011, § 10-104(B) creates a per se rule requiring blood testing where a vehicular acci-dent has resulted in immediate death or great bodily injury. Missouri v. McNeely, __U.S.__, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (2013) holds that law enforcement officers are not categori-cally permitted to obtain a non-consenting suspect’s blood sample without a warrant sim-ply because alcohol is leaving a suspect’s blood stream. The Supreme Court in McNeely held that “in drunk-driving investigations, the natu-ral dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant.” Id., 133 S. Ct. at 1568. Instead, in each case law enforcement must examine the totality of the circumstances in determining whether such a warrantless search is reasonable and permissible under McNeely. Specifically, law enforcement must consider whether “there is compelling need for official action and no time to secure a warrant.” Id. at 1559 (quoting Michigan v. Tyler, 436 U.S. 499, 509, 98 S. Ct. 1942, 1949, 56 L. Ed. 2d 486 (1978)).

¶3 McNeely reaffirmed the Supreme Court’s holding in Schmerber v. California, 384 U.S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966) which likewise evaluated the totality of the circum-stances in determining whether a warrantless, nonconsensual blood draw by police was justi-fied by exigent circumstances. McNeely, 133 S. Ct. at 1559-60; Schmerber, 384 U.S. at 770-72, 86 S. Ct. at 1835-36.

¶4 Undeterred, the majority opinion in the present case concludes that McNeely does not prohibit the use of per se rules of this type in vehicular homicide or great bodily injury cases. The holding in McNeely, the majority reasons, applies only to routine DUI investigations not involving immediate death or great bodily injury. The majority ignores, however, that Schmerber itself involved a two-person DUI non-fatality injury accident. Id., 384 U.S. at 758 n.2, 86 S. Ct. at 1829 n.2. And the Fourth Amendment unquestionably applies regard-less of whether we are addressing a vehicular homicide case or a non-injury DUI case as in McNeely. As another court has recognized, “[t]he seriousness of the offense does not itself cre-ate exigency[.]” State v. Stavish, 868 N.W.2d 670, 680 (Minn. 2015) (citing Mincey v. Arizona, 437


U.S. 385, 394, 98 S. Ct. 2408, 2414, 57 L. Ed. 2d 290 (1978)). Nor does the difference between attempting to obtain evidence essential to a probable DUI charge and a vehicular homicide charge “reduce the quantum of evidence the State must present to prove exigent circum-stances.” Stavish, 868 N.W.2d at 680.

¶5 No one would dispute that the Fourth Amendment would require a search warrant for the investigation of a residence where a homicide occurred absent some indication that evidence would be lost, destroyed, or removed during the time required to obtain a search warrant; where a police presence minimized that possibility; and where a warrant could be easily and conveniently obtained. Notably, those were the facts in Mincey v. Arizona, 437 U.S. 385, 98 S. Ct. 2408, 57 L. Ed. 2d 290 (1978), where the Supreme Court rejected a categorical exception to the warrant requirement based on the existence of a possible homicide at a crime scene which, according to the State of Arizona, presented an emergency situation demanding immediate action regardless of the surround-ing circumstances. Id., 437 U.S. at 392-94, 98 S. Ct. at 2413-14.

¶6 The Mincey court “decline[d] to hold that the seriousness of the offense under investiga-tion itself creates exigent circumstances of the kind that under the Fourth Amendment justify a warrantless search.” Id., 437 U.S. at 394, 98 S. Ct. at 2414. Yet, the majority opinion in the present case sanctions forced blood draws — described by the Supreme Court as an invasion of bodily integrity implicating a person’s “most personal and deep-rooted expectations of pri-vacy[,]” McNeely, 133 S. Ct. at 1558 (internal quotation omitted) — based on little more than the seriousness of the offense being investigat-ed, i.e., vehicular accidents resulting in death or great bodily injury. See also Schmerber, 384 U.S. at 770, 86 S. Ct. at 1835 (noting that absent an emergency, search warrants are generally required for searches of dwellings and “no less could be required where intrusions into the human body are concerned.”).

¶7 Nothing in McNeely endorses application of a per se rule in this context which disregards the Fourth Amendment prohibition against warrantless searches. On the contrary, every-thing in McNeely and Schmerber tells us that the regular exigency analysis must be applied in this case. That is precisely what Judge Musse-man did in denying the defense motion to sup-press — he found the exigency exception to the

warrant requirement satisfied in the present case. As the majority opinion holds alterna-tively, the record shows Judge Musseman’s decision upholding the nonconsensual blood draw in this case was not an abuse of discre-tion. Cripps, slip op. at 4 n.4.

¶8 Perhaps the exigency analysis will be sat-isfied in the vast majority of fatality-DUI cases. But that is not to say police will act reasonably in every fatality-DUI case when they do not obtain a warrant before conducting forced blood-draws. On this last point, I repeat what McNeely held: “In those drunk-driving inves-tigations where police officers can reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so.” McNeely, 133 S. Ct. at 1561.

¶9 McNeely makes clear that law enforce-ment officers are not categorically permitted to obtain a non-consenting suspect’s blood sam-ple without a warrant simply because alcohol is leaving a suspect’s blood stream. The major-ity in this case wrongly limits McNeely’s reach. This is particularly troubling considering the “cardinal principle” embodied by the Fourth Amendment that “searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable . . . subject only to a few specifically established and well-delineated exceptions.” Mincey, 437 U.S. at 390, 98 S. Ct. at 2412 (quoting Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 514, 19 L. Ed. 2d 576 (1967) (footnotes omitted)).

¶10 Today’s decision is especially unsettling considering the subject matter. DUI-related accidents and vehicular homicides are a nation-al epidemic with the potential to impact direct-ly each and every person who drives on our streets and highways. Police and prosecutors are, in the first instance, left to deal with the legal consequences of these tragic — and entirely preventable — crimes. Today’s deci-sion does them no favors. Instead of clarifying that § 10-104(B) can (and must) be applied in a constitutional manner in light of clearly-estab-lished Supreme Court law as we have with other statutes in this context,1 the majority merely tells police and prosecutors that there is nothing to see here.

¶11 The majority’s insistence upon marginal-izing McNeely and Schmerber in this way adds uncertainty to the law where there should be


none. We leave the bench, bar and public won-dering what the law truly is and, in the process, leave the fate of DUI-related vehicular acci-dents involving immediate death or injuries hanging in the balance. Today’s decision is not built to last — we are simply delaying the inevitable.2 For the above reasons, I concur in part and dissent in part to the majority opinion in this case.

SMITH, PRESIDENT JUDGE:

1. Cripps was acquitted of the charged crime, manslaughter in the first degree by automobile.

2. For purposes of this appeal this Court treats the separate issues raised in Cripps’ brief as separate propositions of error, inartfully but correctly raised under our Rules. Rule 3.5(A)(5), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2016).

3. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and Kumho Tire Co., Ltd. v. Carmi-chael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999), govern admissibility of scientific and other technical or specialized evidence. Day, 2013 OK CR 8, ¶ 4, 303 P.3d at 295. In Oklahoma criminal cases, Daubert inquiry is explicitly limited to novel scientific evidence; if the testimony is not novel, the trial court need not hold a Daubert hearing. Day, id. at ¶ 5, 295. A thorough review of the record shows that Ste-phens’ testimony was not novel, and although he received a Daubert hearing, none was necessary.

4. At the hearing on Cripps’ motion to suppress, neither party argued § 10-104(B). Instead, they argued whether exigent circum-stances justified the nonconsensual blood draw. The trial court found there were exigent circumstances based on the officer’s testimony that Cripps was so critically injured he believed that, without an immediate blood draw, Cripps would either die or be taken to surgery and become unavailable. The record shows this decision was not an abuse of discretion.

5. On June 23, 2016, the United States Supreme Court decided Birchfield v. North Dakota, No. 14-1468 (June 23, 2016). While Birchfield discusses blood draws, it does not change our conclusion that 47 O.S.2011, § 10-104(B) is constitutional as applied in this case.

LUMPKIN, VICE PRESIDING JUDGE: CONCURRING IN RESULT

1. It goes without saying that if Cripps were taken into surgery, other drugs would be administered and the blood alcohol content of his blood would be compromised and contaminated thus affecting the validity of a subsequent test.

HUDSON, J., CONCURRING IN PART/ DISSENTING IN PART

1. In State v. Shepherd, 1992 OK CR 69, 840 P.2d 644, this Court addressed the constitutional limits of 47 O.S.Supp.1988, § 753, a similar provision that allows an officer to take blood against the objections of a conscious person whom he has placed under arrest when “the investi-gating officer has probable cause to believe that the person under arrest, while intoxicated, has operated his motor vehicle in such a manner as to have caused the death or serious physical injury to any other person or persons.” This Court held that § 753 did not meet the constitutional mandates set forth in Schmerber. Nonetheless, § 753 could be applied in a constitutional manner, this Court held, “if the investigating officer only instructs that blood be drawn from the driver when the officer reason-ably believes that under the circumstances, any delay necessary to secure a warrant may result in the loss of evidence.” Shepherd, 1992 OK CR 69, ¶¶ 5-6, 840 P.2d at 646 (citing Schmerber, 384 U.S. at 770-71).

2. This conclusion is bolstered by the Supreme Court’s recent deci-sion in Birchfield v. North Dakota, No. 14-1468, slip op. at 35 (U.S. Jun. 23, 2016) (“a blood test, unlike a breath test, may be administered to a person who is unconscious (perhaps as a result of a crash) or who is unable to do what is needed to take a breath test due to profound intoxication or injuries. But we have no reason to believe that such situations are common in drunk-driving arrests, and when they arise, the police may apply for a warrant if need be.”).

VACANCY ANNOUNCEMENT OKLAHOMA SUPREME COURT REFEREE

The Oklahoma Supreme Court is now accepting applications for the position of Referee. A Referee is a central staff position. Referees draft memos and make recommendations to the Court on petitions for certiorari to review opinions OF the Court of Civil Appeals, conduct oral presentations on applications to assume original jurisdiction and additional duties as determined by the Court. Applicants must be currently licensed to practice law in the State of Oklahoma, have a minimum of 5 years experience as a practicing lawyer or judge, and have excellent legal research and writing skills.

Applicants’ names will remain confidential until the position is filled. Salary is negotiable.

Applicants should send a resume and writing sample by August 1, 2016, to Jari Askins, Director of the Supreme Court of Oklahoma, Administrative Office of the Courts, 2100 N. Lincoln Blvd., Suite 3, Oklahoma City, Oklahoma, 73105.

The Oklahoma Supreme Court is an Equal Opportunity Employer.


The 55th Oklahoma Legisla-ture is now history with the sine die adjournment of the second session. For readers who may not recall, again this year more than 2,000 measures were intro-duced. Of that number, the Sat-urday Legislative reading day group met and designated over 600 measures to watch and mon-itor. All of the measures that have been enacted by the Legis-lature and signed by the gover-nor will not be addressed here for obvious reasons. However, we have made an effort to report on those significant measures that could significantly affect the practice of OBA members.

VETOED BY THE GOVERNOR

HB 3159 Criminal procedure; time limitation for placing persons on parole docket.

The following is the report on measures that are or will soon become law:

fAMILY LAW ISSUES

HB 2431 Children; permanent guardianships.

HB 2483 Children; termination of parental rights.

HB 2484 Children; DHS custody and supervi-sion.

HB 2491 Children; DHS notification of child abuse to military authorities.

HB 2621 Children; placing of siblings in same foster home.

HB 2757 Children; interest on past due child support.

HB 2963 Children; Adoption Code, regarding adoption expenses.

HB 2965 Child abuse report-ing; recovery of damages, costs and fees.

HB 2971 Creates Child Wel-fare Review Committee for the death and near death of children.

SB 486 Marriage and family; modifies provisions of Uni-form Interstate Family Sup-port Act.

SB 902 Guardianship; pro-hibits certain persons from being appointed guardian.

SB 1327 Modifies provisions of Uniform Inter-state Family Support Act.

SB 1370 Child abuse; requires Department of Human Services to notify certain entities.

CRIMINAL LAW ISSUES

HB 2275 DNA samples for testing from persons arrested on felony crime charges.

HB 2319 Regarding peace officers’ jurisdictional boundaries.

HB 2320 Modifies definition of terrorism.

HB 2398 Expanding scope of crime of forcible sodomy.

HB 2399 Criminal procedure; ex parte orders jurisdictional requirements.

LEGISLATIVE NEWS

Second Session of the 55th Oklahoma Legislature

Final Legislative Monitoring Committee ReportBy Duchess Bartmess and Luke Abel


HB 2397 Criminal procedure; modifying ex-pungement categories.

HB 2425 Increases child prostitution age limit.

HB 2443 Increases time limitation for sentence modification.

HB 2472 Grants discretion to district attorneys to file misdemeanor charges.

HB 2479 Uniform Controlled Dangerous Sub-stances Act penalty modification.

HB 2595 Grants courts authority to consider post-traumatic stress disorder.

HB 2747 Creates Oklahoma Blue Alert Act.

HB 2751 Modifies 20 penalty sections in Title 21.

HB 2934 Authorizes district attorneys to dismiss prosecutions.

SJR 31 Amending the Constitution; relates to the death penalty.

SB 38 Modifies parole requirements for medical release from DOC.

SB 55 Crime and punishment; aggravated as-saults on law enforcement.

SB 167 Restrictions on convicted sex offenders; modifying zone of safety; modifying scope of residency rest.

SB 362 Relates to obstructing an officer; state certain allowances.

SB 412 Violent crime; modifies inclusions as violent crimes.

SB 637 Expands scope of rape, rape by instru-mentation and sexual battery.

SB 1214 Verdicts; relates to acquittal on grounds of insanity; sentences; probation; reporting re-quirements.

BUSINESS ISSUES

HB 2352 Securities; modifying notice filing procedures.

HB 2715 Service warranties; modifying infor-mation required on service contracts.

HB 2761 Bill of 57 pages amending assorted provisions regarding insurance including but not limited to reports, contracts, Third Party Administrators Act and licensing.

HB 2996 Requiring insurance coverage to prove retention percentage.

SB 165 Outdoor advertising; relating to defini-tions for signs; standards; modifying minimum distance.

SB 195 Creates Voluntary Veterans’ Preference Employment Policy Act.

SB 370 Accounting; providing exception for succession of business by sale or transfer.

REVENUE AND TAXATION ISSUES

HB 2349 Regarding additional homestead exemption.

HB 2536 Small Business Administration Loan Guaranty program tax credits.

HB 2623 Gross production tax fee modifica-tions.

HB 2774 Gross production taxes regarding reporting and distribution from unknown sources.

SB 85 Modifying time period and condition under which credits are allowed.

SB 247 Deleting conflicting provisions related to tax credits.

SB 336 Sales tax; providing exemption for cer-tain nonprofit entities or organizations.

SB 1582 Income tax credits; limits amount of credits allowed for investment in depreciable property.

SB 1603 Income tax credit; limits time period during which certain credit shall be allowed.

SB 1604 Income tax credit; limits time period during which certain credit is refundable.

SB 1605 Income tax credit; prohibits use of tax credits for certain entities providing child care.

SB 1606 Income tax adjustments; requires amounts deducted on federal return be added to Oklahoma.

CIVIL PROCEDURE

HB 3024 Creating cause of action in regard to the Catfishing Liability Act of 2016.

HB 3104 Garnishment; requires judgment cred-itor to pay garnishee directly for costs.

HB 3160 Authorizes courts authority to waive outstanding fines, costs and fees.


SB 459 Fees for civil cases; modifies certain assessments.

SB 789 Clarifies admissibility of the amount of claimed medical expenses.

SB 874 Probate procedure; increases limitation on valuation of certain property.

SB 1095 Volunteer immunity; provides exemp-tion from liability for certain acts.

SB 1113 Asset forfeiture; requires payment of fees, costs and interest to prevailing party in action.

NATURAL RESOURCES

HJR 1012 Amending the Constitution, regard-ing farming and ranching practices.

HB 2303 Regarding well plugging fund.

HB 2357 Storage tanks; changes in definition of hazardous substances.

HB 2444 Pipeline safety; modifies penalties for violations.

HB 2446 Regarding protection of waters of the state.

HB 2646 Granting agriculture producers ex-emptions regarding drought conditions.

HB 3158 Granting corporation commission emergency action authority.

SB 208 Environment and natural resources; modifying fee for waste disposal in under-ground injection wells.

SB 809 Oil and gas; authorizes regulation by municipalities, counties and other political subdivisions.

ELECTIONS

HB 2272 Creates Military Privacy Protection Act.

SB 114 Authorizing state agencies to provide change of address information to State Election Board.

SB 312 Modifying dates upon which elections may be held by political subdivisions.

SB 313 Provides for electronic voter registra-tion; provides procedures.

SB 399 Modifies requirements for filing for municipal office.

SB 1108 Modifies information to be printed on ballots.

MISCELLANEOUS

HB 2261 Changes in definitions in American Indian Arts and Crafts Sales Act of 1974.

HB 2510 Open records; addresses confidential-ity of Social Security numbers.

SJR 4 Amending the Constitution; relates to balancing the federal budget.

SJR 68 Amending the Constitution; relates to alcoholic beverages.

SJR 72 Amendment to repeal Section 5 of Article II of the Oklahoma Constitution; allows public money to be used for religious purposes.

SB 23 Open records; providing exception for business information kept by higher education institutions.

SB 98 Council on Judicial Complaints; autho-rizing funding and contracting for certain purposes.

SB 219 Off-duty police officers; modifying cer-tain requirements.

SB 297 Oklahoma Historical Society; creating the Heritage Preservation Act.

SB 548 Judicial officers; modifies procedure for determination of compensation.

SB 725 Wills and succession; expands offenses which prevent a person from inheriting or ben-efitting.

SB 767 Modifies provisions of the Administra-tive Workers’ Compensation Act.

MOTOR VEHICLES

HB 2448 Texting while driving.

HB 2449 Regulations regarding approaching vehicles with flashing lights.

HB 2555 Regarding multiple convictions of driving under the influence.

SB 183 Driving privileges; commercial motor vehicle operators; modifying restrictions, defi-nitions.

SB 246 Motor vehicle registration; modifying requirement and procedure related to security verification of coverage.


SB 255 Creates definition of autocycle; stating registration and exceptions.

SB 322 Authorizing temporary reduction of speed limit; annual overweight permits.

SB 390 Modifies restrictions for graduate Class D licenses.

Although this report is limited to addressing the bills and joint resolutions the Legislative reading day group designated as needing to be tracked throughout the session, there are cer-tainly other measures that may be of particular interest to the practitioner in their individual practice. All measures adopted and signed by the governor are filed with the Oklahoma secre-tary of state. OBA members are encouraged to check with that office for other specific measures which may be of particular interest to the indi-vidual practitioner.

Ms. Bartmess practices in Okla-homa City and chairs the Legisla-tive Monitoring Committee. She can be reached at [email protected].

Luke Abel is an attorney at Abel Law Firm in Oklahoma City, who serves as the vice chairman of the Legislative Monitoring Com-mittee. His practice is focused on handling personal injury claims, and he can be reached at [email protected].

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2016 OK CIV APP 37

CONCORDE RESOURCES CORPORATION, Plaintiff/Appellee, vs.

WILLIAMS PRODUCTION MID-CONTINENT COMPANY, MAHALO

ENERGY (USA), INC., now REDBUD E & P, INC., Defendants/Appellants, KEPCO ENERGY, INC., PYLE, CAREY AND

COLLIE, INC., SMITH, SMITH AND SMITH, a general partnership, and NANCY

JACKSON DAWSON, Defendants/Appellees.

Case No. 112,340. November 24, 2015

APPEAL FROM THE DISTRICT COURT OF MCINTOSH COUNTY, OKLAHOMA

HONORABLE LAWRENCE W. PARISH, TRIAL JUDGE

AffIRMED IN PART AND MODIfIED IN PART AND REMANDED WITH

INSTRUCTIONS

Donald W. Henson, Okmulgee, Oklahoma, for Plaintiff/Appellee

Gregory L. Mahaffey, Travis P. Brown, Brady L. Smith, MAHAFFEY & GORE, P.C., Oklahoma City, Oklahoma, for Defendant/Appellant Mah-alo Energy (USA), Inc., now Redbud E & P, Inc.

KEITH RAPP, PRESIDING JUDGE:

¶1 The defendant, Redbud E & P, Inc. (Red-bud), appeals a judgment in favor of the plaintiff, Concorde Resources Corporation (Concorde), quieting title in Concorde as to certain oil and gas leases.1

¶2 The defendants, Kepco Energy, Inc. (Kepco); Pyle, Carey and Collie, Inc. (PCC); Smith, Smith and Smith, a general partnership (Smith); and Nancy Jackson Dawson (Dawson) did not appear at trial and they have not appeared in this appeal. The trial court judg-ment, as it pertains to these defendants is final.

¶3 In addition, the trial court found in favor of Redbud and Kepco as to Concorde’s claims of interference with business relationships and malicious pursuit of quiet title. This ruling has not been appealed and is final.

BACKGROUND

¶4 In 1978, Gary A. Callahan acquired oil and gas leases from PCC, Smith and Dawson, or their predecessors, covering the SW/4 and the N/2 SE/4 and SW/4 SE/4 and NW/4 Section 12, T9N, R15E, McIntosh County, Oklahoma. The parties refer to these as the Callahan Leas-es or Original Leases.

¶5 A gas well was drilled in 1981 to the Booch formation by Concorde’s predecessor. The well was shut-in in 1982. The well was renamed the Connors #1. Concorde’s owner testified that Concorde acquired the Original Leases.2 Concorde has paid shut-in royalty payments at all relevant times, although appar-ently limited to the SW/4.

¶6 In 1990, Concorde acquired new oil and gas leases from PCC, Smith and Dawson, or their predecessors in title (New Leases).3 These leases described only the SW/4 Section 12, T9N, R15E, McIntosh County, Oklahoma. The owner of Concorde testified that the reason for the New Leases was to reduce the spacing and reduce the shut-in payment. On cross-exami-nation, he affirmed Concorde’s position that the Connor #1 has been capable of production in paying quantities since it was drilled and completed in 1982. He continued and agreed that the circumstance would serve to hold the Callahan Leases (Original Leases).4

¶7 The first issue now is whether the Origi-nal Leases and New Leases terminated because of the inability of the Connors #1 well to pro-duce in paying quantities when it was “turned on” in July of 2008. The second issue for determination is whether Redbud and its pre-decessors acquired the Old Leases as to the Formations as a result of the OCC pooling order.

¶8 The history of Connor #1, shows that Con-corde deepened the well in 1990 to the Middle Booch formation, without success. From that time to 2008, Concorde did not perform any other activities in connection with the well other than checking well pressure, usually twice a year, and the pressure reading was between 380 and 440 pounds. Concorde did not expend funds during that time period for operation or maintenance of the well.5 From

Court of Civil Appeals Opinions


1990 to July of 2008, Concorde did not sell any gas from Connor #1. Also, Concorde did no further exploration. Concorde does not dispute this inactivity.

¶9 Without contradiction, Concorde main-tained that there was no pipeline connection available until July 2008, and the trial court found that to be true. The parties stipulated that Redbud would not assert breach of the implied covenant to market.

¶10 A pipeline became available in 2008. Concorde’s owner testified that Concorde con-nected to the pipeline in July 2008, tested the line and waited for a gas sales contract. Accord-ing to the witness, the well was turned on without any problem, such as water or any need for repairs, and gas was sold.

¶11 A compressor was added. According to Concorde’s witness, this equipment aided in transportation of the gas in the pipeline and had no function for production. Dating from about 1990, the well had a water tank and separator. Concorde replaced both in June 2008.6 According to Concorde’s owner, the well was “turned on” and began producing gas. The well was not “loaded” with water and the water produced was consistent with water pro-duced generally in gas production. Concorde’s records reflect 110 barrels of water during the first approximately 30 days of production in 2008. Redbud maintains that this is excessive and shows that the well was “loaded” with water. The trial court found that the water removal did not equate to adding additional equipment or repair.

¶12 Concorde presented Mr. Davis, the per-son who assisted with the 1990 deepening of the well. He was qualified as a person having drilled many wells and as a former employee of the Oklahoma Corporation Commission (OCC). Mr. Davis explained that water was used in the drilling to deepen the well and then the well was dried. He confirmed the regula-tory method for testing pressure and testified that the well was then testing for about 400 pounds and estimated it was capable of pro-ducing substantial volumes of gas. On unspec-ified future dates, he again checked and there was pressure at the wellhead. In his opinion the well was capable of producing gas in pay-ing quantities when it was shut-in.7 Mr. Davis testified that the compressor functioned for transportation rather than production.

¶13 On cross-examination, Mr. Davis agreed that he did not know the capability of the well in 2008. He also stated that without a separator, the gas purchaser would not purchase the gas with water content.

¶14 Concorde’s vice-president, Mr. Dobbs, testified about checking the well over time.8 It always had pressure of approximately 390 pounds. He presented the financial history of the well showing gas sales and the net after taxes and costs, including depreciation. He also agreed that the Connor #1 well would hold the Old Leases, assuming production capability. On redirect, he testified that Red-bud’s pooling order did not cover the forma-tion being produced by Connor #1.

¶15 Concorde sold gas from the well in July, August and September of 2008 and received $24,000.00. Concorde resumed operation of the well after the first appeal in this case and the well has produced since then. 9

¶16 In 2006 and 2007, Redbud, or its prede-cessors, obtained oil and gas leases, which in combination covered the SW/4 and NW/4 and E/2 SE/4 and NE/4 SE/4 Section 12, T9N, R15E, McIntosh County, Oklahoma (Redbud Leases).10 Concorde learned of this and pro-posed drilling and sent a letter demanding a release of the leases by Redbud’s predecessor as to the SW/4 of Section 12, T9N, R15E, McIn-tosh County, Oklahoma.

¶17 The refusal to release resulted in this lawsuit by Concorde to quiet title and to obtain damages against Kepco, Williams and Mahalo. The trial court ruled against the damages claims and Redbud did not appeal that ruling. Kepco, Williams and Mahalo (all now Redbud) counterclaimed to adjudicate Concorde’s leas-es as expired and to quiet their respective titles. Kepco did not appear for trial.

¶18 Redbud maintained first that the Origi-nal Leases and the New Leases expired because Concorde has not shown that the only existing well was capable of producing in paying quan-tities. Redbud presented an expert petroleum engineer who testified that his opinion was that the Connor #1 was not capable of produc-tion in paying quantities in 2008.

¶19 The expert testified that he examined records showing that the well was operational for a short time in mid-June 2008 and not operational again until late-July 2008. He in-ferred that work had to be performed on the


well in order to make it productive. This work mainly involved replacement of the separator and compressor. The witness testified that these items were necessary in order for the well to be capable of commercial production. He characterized the compressor expense as a lift-ing cost and stated that it aided in removing water during the period from June to July so that the well would be productive. In his opin-ion, the 110 barrels of water produced in the first two months confirmed water accumula-tion over time while the well was shut-in. He summarized his opinion to say that the well was turned on in June 2008, it did not produce due to water, additional or new equipment had to be obtained and installed, the water was pumped out using the compressor, and the well became productive.11

¶20 On cross-examination, the expert ac-knowledged that he had not visited the Connor #1 well site. He also had no evidence of what transpired at the well during June to July 2008, and deduced his conclusion from invoices to Concorde. He agreed that the well has been pro-ducing in paying quantities since July 23, 2008, but maintained that the relevant date to consider was the date the well was “turned on” and, in his opinion, the well was not capable of produc-ing in paying quantities on that date.

¶21 Redbud’s final witness was an attorney, an expert in title examination. He testified that Concorde’s taking of the New Leases was con-sistent with a conclusion that Concorde did not consider the Original Leases any longer valid. He also agreed that the OCC pooling order did not pool the Connor #1 well.

¶22 The trial court held in favor of Concorde with regard to the lease issues and denied damages. Redbud appeals.

STANDARD Of REVIEW

¶23 In actions of equitable cognizance, the judgment made by the trial court will be reversed if it is clearly contrary to the weight of the evidence or contrary to accepted principles of equity or rules of law. In re Estate of Eversole, 1994 OK 114, ¶ 7, 885 P.2d 657, 661. Hitt v. Hitt, 1953 OK 391, 258 P.2d 599, held that it is for the trial court in a case of equitable cognizance to determine the credibility of the witnesses and the weight and value to be given to the testimo-ny. Where the evidence is in conflict, the trial court’s determination will not be set aside unless the determination is clearly against the weight of

the evidence. Briggs v. Sarkey’s Inc., 1966 OK 168, ¶ 29, 418 P.2d 620, 624.

¶24 The appellate court will exercise its “ple-nary, independent, and non-deferential author-ity [when] reexamin[ing] a trial court’s legal rulings.” Neil Acquisition, L.L.C. v. Wingrod Inv. Corp., 1996 OK 125, ¶4, 932 P.2d 1100, 1103 n.1; Spielmann v. Hayes, 2000 OK CIV APP 44, ¶ 8, 3 P.3d 711, 713. This Court’s standard of review is de novo and gives no deference to the legal rulings of the trial court. State ex rel. Dept. of Human Services, ex rel. Jones v. Baggett, 1999 OK 68, 990 P.2d 235.

ANALYSIS AND REVIEW

A.Relationship of Original Leases and New Leases

¶25 The trial court quieted title in Concorde “in and to the oil and gas leases” without spe-cific description. The ruling continued further and validated the New Leases.

¶26 According to the only evidence in the case, Concorde acquired the Original Leases, including the Connor #1, in a settlement of liti-gation. However, the assignment was not recorded either as a documented settlement or an official deed record.12 The prior owner did file with the OCC a change of operators notice. Subsequently, Concorde obtained the New Leases covering only the SW/4, and these were duly recorded.

¶27 However, Concorde’s witnesses agreed that the Connor #1 held the Original Leases.13 Without more, the status of the New Leases would be questionable. Therefore, it is neces-sary to reconcile the ruling quieting title and the ruling validating the New Leases.

¶28 The reconciliation begins with the recog-nition that the trial court necessarily ruled that Connor #1 also held the New Leases notwith-standing that the Connor #1 was completed before Concorde obtained the Original Leases from Callahan and the New Leases. A trial court judgment in an equity case carries with it all necessary findings and conclusions. First Federal Savings and Loan Ass’n, Chickasha, Okla-homa v. Nath, 1992 OK 129, 839 P.2d 1336 (implied finding of no injury to plaintiff seek-ing an injunction); O’Laughlin v. City of Ft. Gib-son, 1964 OK 31, 389 P.2d 506 (Syl. 1).

¶29 However, in order to sustain the conclu-sion that Connor #1 holds the New Leases, there must be a legal connection between that


well and the New Leases. The steps to reach this conclusion are: (1) Concorde acquires Origi-nal Leases; (2) Concorde acquires New Leases: (3) the merger doctrine operates to merge the common title; and (4) Connor #1 is a well capa-ble of producing in paying quantities.14

¶30 This Court finds that Concorde held equitable title to the Original Leases as a result of the litigation settlement. Equity treats things agreed to be done as actually performed. Hamra v. Mitchell, 1928 OK 557, 271 P. 1042. Concorde settled its case and pursuant to the terms shown by the only evidence here, Concorde obtained equitable title to the Original Leases. That was the status when Concorde obtained the New Leases, so that Concorde then owned equitable title to the Original Leases with Con-nor #1 and legal title to the New Leases, with the common title being the SW/4.

¶31 The necessary conclusion here is that the titles to the Original Leases and New Leases merged as to the SW/4. When a legal estate and an equitable estate are coextensive and become vested in the same person, there is a merger of the equitable estate in the legal estate and a consequent extinguishment of the equi-table estate, and survival of the legal estate, absent any intent not to merge. First Federal Savings and Loan Ass’n, Chickasha, Oklahoma, 1992 OK 129, ¶ 5, 839 P.2d at 1340.

¶32 The evidence shows that Concorde obtained the New Leases for its benefit. Shut-in royalty was paid based on the New Leases as well as the Original Leases. There is no evi-dence that Concorde abandoned the Connor #1 or drilled a new well as a result of the New Leases acquisitions. The evidence shows that Concorde treated the New Leases as covered by the Old Leases and Connor #1.

¶33 Therefore, this Court finds that the Original Leases, together with the legal and factual consequences associated with Connor #1, merged with the New Leases as to the SW/4. The first three steps are satisfied and the next question then is whether Connor #1 was capable of producing in paying quantities so as to hold the Leases.

B.1. Whether The Connor #1 Was Capable of Production in Paying Quantities.

¶34 In order to avoid lease expiration under the facts here, the Connor #1 well must have been capable of producing gas in paying quan-tities. The terms “produced” and “produced in

paying quantities” have substantially the same meaning. Pack v. Santa Fe Minerals, 1994 OK 23, ¶ 8, 869 P.2d 323, 326. The meaning of that phrase is set out in Smith v. Marshall Oil Corp., 2004 OK 10, ¶ 9, 85 P.3d 830, 833.

In the state of Oklahoma, when the term “produced” is used in a “thereafter” provi-sion of an habendum clause, its meaning is that of “production in paying quantities.” … “Production in paying quantities is a term defined by Oklahoma case law to mean “production of quantities of oil and gas sufficient to yield a profit to the lessee over operating expenses, even though the drilling costs or equipping costs are never recovered, and even if the undertaking as a whole may result in a loss to the lessee.” . . . The phrase denotes a return in excess of “lifting expenses,” costs associated with lifting the oil from the ground after the well has been drilled (citations omitted).

¶35 Here it is clear that Connor #1 produces gas in paying quantities. The contested issue in this case is whether the well had the ability to produce when the market became available in June 2008, rather than the actual production at a later time. Pack, 1994 OK 23, ¶ 10, 869 P.2d at 327.

¶36 Pack presented a marketing issue regard-ing wells that were capable of producing in paying quantities. The Court construed Smith in Baytide Petroleum, Inc. v. Continental Resourc-es, Inc., 2010 OK 6, ¶ 16, 231 P.3d 1144, 1149. (“Smith’s pronouncement makes it clear that it is the unreasonable cessation of production that causes the lease to terminate.”) The issue in Smith involved a question of whether wells produced in paying quantities. There, the Court held:

In determining whether a failure to produce in paying quantities suffices to terminate a lease, we examine the facts and circumstanc-es of the cessation on a case-by-case basis. Indeed, we have held that “compelling equi-table considerations” may save a lease from termination even with unprofitable well operations.

Smith, 2004 OK 10, ¶ 12, 85 P.3d at 83 (no equi-table considerations given) (citations omitted).

¶37 In the case under review, the question does not arise because of some intervening equitable consideration excusing delay in pro-duction. Shut-in royalties were paid over the years and the evidence shows that there was


no ability to market the gas from the well until 2008. Here, the question is whether the Connor #1 had the ability to produce in paying quanti-ties when the impediment (no pipeline) to marketing was removed.15

¶38 Redbud argues for a test that would con-sider only whether the well could be merely “turned on” when the pipeline became avail-able. Redbud’s view of the evidence is that Con-nor #1 required repair and additional equipment before it could be “turned on” and begin flow-ing gas. Redbud relies on secondary authority from Hydrocarbon Management, Inc. v. Tracker Exploration, Inc., 861 S.W.2d 427, 433-34 (Tex. App. 1993), where the Court stated:

We believe that the phrase “capable of pro-duction in paying quantities” means a well that will produce in paying quantities if the well is turned “on,” and it begins flowing, without additional equipment or repair. Conversely, a well would not be capable of producing in paying quantities if the well switch were turned “on,” and the well did not flow, because of mechanical problems or because the well needs rods, tubing, or pumping equipment.

¶39 Concorde, of course, has the opposite view and maintains that the well was “turned on” and produced. According to Concorde, the replaced equipment did not affect the well’s ability to produce, but was required for mar-keting and transportation, because the buyer would not accept product with water.

¶40 Redbud again cites a secondary source which is not binding on this Court. See Coro-nado Oil Co. v. U.S. Dep’t of Interior, 415 F. Supp.2d 1339 (D. Wyo. 2006). Coronado pro-duced oil with some water, but over time the water increased substantially to 99.8 percent water. The well ceased production while Coro-nado sought form the State a permit to dis-charge the water. After attempts to restore production and a series of exchanges with the U.S. Bureau of Land Management (BLM), BLM notified Coronado that the lease was terminat-ed. Coronado maintained that BLM violated the Mineral Leasing Act, 30 U.S.C. § 226(i) which barred termination where “there is a well capable of producing oil or gas in paying quantities shall expire because the lessee fails to produce the same unless the lessee is allowed a reasonable time, which shall be not less than sixty days after notice by registered or certified

mail, within which to place such well in pro-ducing status.”

¶41 In the context of an argument over notice, the court stated:

A “well capable of production in paying quantities” must be presently able to pro-duce oil or gas-potential for production is insufficient. Therefore, a well is not capable of production in paying quantities “where substantial pumping of water from the well is required before oil could be pro-duced in paying quantities.

Coronado, 415 F. Supp.2d at 1351-52 (citations omitted).

¶42 The Coronado facts were that water was virtually all that was produced. Moreover, there was no evidence to show that the well was capable of production before the water was pumped out. Such evidence was necessary under the regulations in order to have a hear-ing on the well’s capability of immediate pro-duction. Nevertheless, the court reversed the BLM and required it to consider whether Coro-nado was acting with due diligence to rework the well as it was permitted to do.

¶43 Here, the parties disputed the effect of the water produced in Connor #1. Moreover, under any view of the evidence, the water issue was not as severe in Coronado as evi-denced by the purchase of product in the pipe-line. The trial court found in favor of Concorde on the disputed facts.

¶44 In reaching its conclusions, the trial court did not take either party’s contention com-pletely as its own. Rather, the trial court acknowledged that equipment was replaced and that work was done regarding water. However, the trial court added that “it would be foolish” to purchase the separator and com-pressor only to have them deteriorate while waiting for a market for the gas and the work was not of a nature to render the well incapable of production. In other words, the trial court applied equitable and rational considerations to the facts in order to reach its decision.

¶45 The trial court’s reasoning and result regarding whether Connor #1 was capable of producing in paying quantities in June 2008 are correct. The literal application of the secondary authority of Hydrocarbon Management, Inc. is contrary to Oklahoma jurisprudence as well as that of other jurisdictions.


¶46 In Levin v. Maw Oil & Gas, LLC, 234 P.3d 805 (Kan. 2010), the issue involved a definition of “shut-in” where one component of the defi-nition is that the well must be capable of pro-ducing in paying quantities.16 The Kansas Court rejected Hydrocarbon Management, Inc. as being too rigid. The Kansas Court looked to the matters that affected the properties and poten-tial of the well as opposed to factors related to processing or transport of the product. In doing so, the Kansas Supreme Court ruled:

The setup and performance of dewatering operations may affect a well’s complete-ness, but we decline the lessors’ invitation to adopt a rigid legal definition of shut-in entirely dependent upon whether dewater-ing has begun or upon whether equipment or repairs are still needed.

Levin, 234 P.3d at 819.

¶47 In addition, Redbud points to the total absence of production of any sort for seventeen years, together with its assessment of the phys-ical condition of the equipment and well pres-sure. Redbud argues that the well required work and additional equipment before it could be made productive and that the trial court erred in finding otherwise.

¶48 Concorde disputes Redbud’s character-ization of the physical condition of the well equipment and maintains that the well did in fact have sufficient pressure. Concorde argues that the compressor was added for transporta-tion purpose and not for production purpose. Concorde’s owner testified that the well was turned on and began producing. According to him the well was not “loaded” with water and such water that was produced was a natural condition associated with gas production.

¶49 Smith instructs that a review examines the facts and circumstances of the cessation on a case-by-case basis and that “compelling equi-table considerations” may save a lease from termination even with unprofitable well opera-tions. The resolution of the disputed facts was a task for the trial court. Redbud would have the trial court cancel all the Leases based upon its argument that at an instant in time when water contamination was not allowed in the pipeline, the Connor #1 was not capable of pro-ducing in paying quantities. The cases of Smith and Levin reject that approach in favor of equi-table considerations in a case-by-case review.

¶50 Although disputed, the evidence at worst for Concorde showed that when the well was “turned on” Concorde experienced a tem-porary, easily corrected impediment to produc-tion. The impediment was promptly rectified.17 Concorde installed equipment (which it main-tained was unrelated to production) and, as all agree, Connor #1 has produced gas in paying quantities since July-August 2008.

¶51 According to the trial court, installation of that equipment would be “foolish” without a pipeline. Redbud does not dispute the char-acterization in its argument for capability at a specific moment in time. Clearly, here the trial court found expenditures characterized as “foolish” to be a compelling consideration. The trial court’s reasoning and conclusion are not against the clear weight of the evidence.

¶52 Given the “foolish” aspect, it follows that an equitable consideration will allow a reason-able time to test and repair or replace equip-ment after so long a period as here.18 Implicit in the trial court’s judgment is the conclusion that Concorde had a reasonable time to test and make repairs and that the time involved was not unreasonable.

¶53 Therefore, this Court holds that a deter-mination of whether a well is “capable of producing in paying quantities” involves equitable considerations conducted on a case-by-case basis. Looking at the status of a well at a precise moment in time might overlook ra-tional explanations of whether a well is, or is not, capable of producing in paying quanti-ties. Here, it is clear that the trial court, expressly or implicitly, examined the facts per-tinent to Connor #1 in accordance with the foregoing criterion.

¶54 The trial court’s conclusion that Connor #1 is a well capable of producing in paying quantities is not against the clear weight of the evidence or contrary to law.

However, this does not resolve Redbud’s claim to other formations.

B.2. Lease Ownership as to Savanna, Red fork, Bartlesville and Hartshorne

formations (“formations”).

¶55 The trial court quieted title “in and to the oil and gas leases” in Concorde, but without mentioning whether that included the Origi-nal Leases, the New Leases, or both. The trial court’s ruling continued and validated the


New Leases.19 Redbud asserts lease ownership as to the other Formations by virtue pooling of the Original Leases (also called Callahan Leas-es in the Briefs) in the OCC Pooling Order 548316, dated December 28, 2007.20 Redbud does not claim any rights to Connor #1 or the Booch formation based upon the pooling order. Concorde was a party and respondent in the OCC proceeding.

¶56 The trial court overruled Concorde’s procedural objections to consideration of the question, and Concorde has not appealed. Therefore those objections will not be consid-ered.

¶57 Concorde’s remaining argument appears to be that: (1) the Original Leases had expired; (2) thus, the Original Leases could not be pooled; and, (3) therefore, Concorde’s New Leases define its interest and ownership of Connor #1, unaffected by the pooling order. The first premise is not supported by Con-corde’s own witnesses, and does not appear to have been an issue in the pooling proceeding. More important is the fact that Redbud makes no claim to the Conner #1 and its Booch forma-tion by virtue of the pooling order.

¶58 The trial court’s order that quieted title “in and to the oil and gas leases” must be modified. The judgment is modified to grant judgment to Concorde quieting title in and to the Original Leases and the New Leases insofar as they cover the formations under the SW/4 Section 12, T9N, R15E, McIntosh County, Okla-homa, other than Savanna, Red Fork, Harts-horne and Bartlesville formations. The cause is remanded to the trial court for the purpose of entering the modified judgment and supplying such precision of legal description as is appro-priate.

CONCLUSION

¶59 Oil and gas leases were obtained in 1978 covering the SW/4 and other tracts in Section 12, T9N, R15E, McIntosh County, Oklahoma. A gas well was drilled in the SW/4 and shut-in for lack of a pipeline. Concorde acquired equi-table title to these leases and, afterward, obtained leases covering only the SW/4. Pur-suant to the merger doctrine, Concorde’s equi-table title and legal title as to the SW/4 merged.

¶60 The trial court’s decision that the Connor #1 well was capable of producing in paying quantities when a pipeline became available is not against the clear weight of the evidence or

contrary to law. That part of the judgment is affirmed.

¶61 By virtue of a pooling order, Redbud acquired the interests under all of Section 12, T9N, R15E, McIntosh County, Oklahoma, as to the Savanna, Red Fork, Hartshorne and Bartles-ville formations. The trial court’s judgment quieting title in Concorde is modified to exclude those formations. The cause is remand-ed for the purpose of modification of the judg-ment with the precise legal description sup-plied as part of the judgment in accord with this Opinion.

¶62 AFFIRMED IN PART AND MODIFIED IN PART AND REMANDED WITH INSTRUC-TIONS.

BARNES, J., and THORNBRUGH, J., concur.

KEITH RAPP, PRESIDING JUDGE:

1. The Journal Entry recites that Redbud was formerly Mahalo Energy (USA), Inc. (Mahalo) and that Redbud is the successor in inter-est to Williams Production Mid-Continent Company (Williams) and Mid-Continent Company (Mid-Continent).

2. The owner testified that the Original Leases were acquired in settlement of litigation. Tr. pp. 30-31. The Record does not reflect any formal assignment filed showing a transfer of the Original Leases and the Concorde owner did not recall any formal assignment. He did file a change of operator with the Oklahoma Corporation Commission. Tr. p. 31.

3. This Opinion will use “New Leases” to refer to the leases acquired by Concorde in 1990 and “Original Leases” for the Callahan leases that Concorde acquired prior to 1990.

4. Redbud cites this testimony along with its pooling order from OCC to assert leased ownership of pooled formations Savanna, Red Fork, Bartlesville and Hartshorne under Section 12, T9N, R15E, McIn-tosh County, Oklahoma, as the common source of supply (“Forma-tions.”) The Oklahoma Corporation Commission pooling order, cover-ing those formations, is in evidence as Def. Ex. 53. The pooling order shows that Concorde was a party to the proceeding and its application. Redbud agreed that the Oklahoma Corporation Commission pooling order did not cover the Booch formation. Tr. p. 189.

5. The parties differed about the meaning and significance of the pressure readings, and in particular regarding the existence of water in the well and its implications for pressure readings.

6. The trial court ruled that it would be foolish to purchase or rent a compressor, separator, and salt water tank when there was no pipe-line available to sell the gas because they would just deteriorate.

7. Concorde’s expert witness previous to Mr. Davis testified princi-pally about whether Redbud’s predecessors had been in bad faith. However, he also defined “Shut-in.” Tr. p. 118.

In order to have a shut-in gas well, two requirements are the well has to be capable of producing gas in commercial quantities, and sec-ond, you have to - there has to be no available market.

8. Counsel for Redbud, on cross-examination, propounded ques-tions designed to impeach the witness. Objections were made. Red-bud’s Brief references the subject matter of the questions. However, it appears that the trial court struck the impeachment testimony. Tr. p. 169.

9. The witness testified that the well was shut-in during the pen-dency of the first appeal in this case. After the mandate issued, Con-corde resumed production and sale of gas, but with the proceeds in suspense pending the outcome of this case.

10. The Original Leases, in combination, and the Redbud Leases, in combination, all described the same lands, which included the SW/4 Section 12, T9N, R12E, McIntosh County, Oklahoma, along with other lands. The New Leases described only the SW/4 Section 12, T9N, R12E, McIntosh County, Oklahoma. Connor #1 is located in that SW/4.

11. Tr., p. 205.12. As between Concorde and its then opponent, no recording was

necessary. 16 O.S.2011, § 15. Moreover, as to leases of lands other than


the SW/4, Redbud made no claim of being a bona fide purchaser with-out notice, leaving only the SW/4 at issue.

13. The prior appeal in this case did not decide whether Connor #1 would also hold the New Leases due to the absence of factual develop-ment and provision of legal authority.

14. Shut-in royalties have been paid.15. This Court notes that here the parties focus on the period of

mid-June to late July 2008. The New Lease anniversary date precedes that period and the anniversary date is the date for payment of shut-in royalty to cover a one-year period. The parties have not presented or briefed the question of whether the payment of shut-in royalty on the anniversary date of the New Leases had any role in determining the “ability to produce date,” that is, whether the “ability to produce date” would be postponed to the next anniversary. This Court expresses no views on the issue.

16. A well is “shut-in,” for purposes of a shut-in royalty clause in an oil and gas lease, when it is completed and capable of producing natural gas in paying quantities. Levin, 234 P.3d at 816-17.

17. In Coronado, the operator was given an opportunity to remedy the problem with the water.

18. This Court notes that adoption of Concorde’s view of the func-tion of the compressor and separator as transportation related makes it possible that the depreciation of these items would not be deducted from proceeds to calculate lifting costs and then “paying quantities.” See Mason v. Ladd Petroleum, 1981 OK 73, 630 P.2d 1283.

19. Journal Entry, ¶ 10.20. Def. Ex 53. The pooling order covers the Formations in all of

Section 12, T9N R15E McIntosh County, Oklahoma.

2016 OK CIV APP 38

TINKER fEDERAL CREDIT UNION, Plaintiff/Appellee, vs. AAAA WRECKER

SERVICE, INC., Defendant/Appellant, and Martin Remmers and Ashley L. Hurt,

Defendants.

Case No. 113,200. October 30, 2015

APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY, OKLAHOMA

HONORABLE BERNARD M. JONES, TRIAL JUDGE

REVERSED AND REMANDED

Bart A. Boren, WILLIAMS, BOREN & ASSOCI-ATES, P.C., Oklahoma City, Oklahoma, for Plaintiff/Appellee,

Perry E. Kaufman, Mary B. Scott, GOOLSBY, PROCTOR, HEEFNER & GIBBS, P.C., Oklaho-ma City, Oklahoma, for Defendant/Appellant.

Wm. C. Hetherington, Jr., Chief Judge:

¶1 AAAA Wrecker (Wrecker) appeals the denial of its motions for new trial, for summary judgment, and for settlement of the journal entry and enlargement of time. The trial court entered the judgment in favor of Tinker Fed-eral Credit Union (TFCU) following summary proceedings.1 In that judgment, the trial court found that Wrecker’s possessory lien was gov-erned by 42 O.S.Supp.2008 § 91 rather than 42 O.S.Supp.2008 § 91A, and that TFCU’s lien had superior priority. The trial court erred by apply-ing § 91 rather than § 91A. Consequently, the

judgment was based on an error of law. It is reversed. Wrecker was entitled to judgment on its motions for summary judgment and for new trial, both of which raised the applicability of § 91A. The case is remanded for entry of an order consistent with this opinion.

STANDARD OF REVIEW

¶2 Summary judgment is proper when there are no material facts in dispute. Indiana Nation-al Bank v. State Department of Human Services, 1993 OK 101, ¶ 10, 857 P.2d 53, 59. A court may look beyond the pleadings at evidentiary mate-rials to decide whether there are any material facts disputed which remain for resolution by the trier. Id. “The court may not weigh the evi-dence, but may only review the evidence to determine whether there is a factual dispute.” Id.; Stuckey v. Young Exploration Co., 1978 OK 128, ¶ 15, 586 P.2d 726, 730. “All inferences must be taken in favor of the opposing party. Manora v. Watts Regulator Co., [1989 OK 152, ¶ 9,] 784 P.2d 1056 (Okla. 1989).” Seitsinger v. Doc-kum Pontiac Inc., 1995 OK 29, ¶ 7, 894 P.2d 1077, 1079. If reasonable people could differ as to the facts, the matter is not proper for summary judgment. Indiana National Bank, ¶ 10, p. 59. A trial court considers factual matters when determining if summary judgment is appropri-ate, but because the ultimate decision turns on the purely legal determination, i.e., whether one party is entitled to judgment as a matter of law, the appellate standard of review of a trial court’s grant of summary judgment is de novo. Carmichael v. Beller, 1996 OK 48, ¶ 2, 914 P.2d 1051, 1053.

¶3 We review a denial of a motion for new trial for abuse of discretion. Head v. McCracken, 2004 OK 84, ¶ 2, 102 P.3d 670, 673. However, when the trial court’s exercise of such discre-tion rests on the propriety of an underlying grant of summary judgment, “the abuse-of-discretion question is settled by our de novo review of the summary adjudication’s correct-ness.” Reeds v. Walker, 2006 OK 43, ¶ 9, 157 P.3d 100, 116. Judicial discretion is abused when a trial court errs with respect to a pure, unmixed question of law. Id. “Unless the court either clearly erred in resolving a ‘pure simple ques-tion of law’ or acted arbitrarily, we will not dis-turb its refusal to grant a new trial.” Ward v. State ex rel. Dept. of Public Safety, 2006 OK CIV APP 1, ¶ 10, 127 P.3d 643, 644 (citation omitted).


FACTS

¶4 On March 28, 2013, Martin Remmers (Remmers) and Ashley Hurt (Hurt) purchased a 2011 Dodge Charger (the Charger) from Bob Howard Dodge. They traded in a 2006 Saturn and financed the balance of the purchase with TFCU. On May 10, 2013, while Hurt was driv-ing the Charger, the vehicle was involved in an accident. Wrecker towed it away and stored it.

¶5 On August 2, 2013, Wrecker executed a Notice of Sale in which it named Remmers, Hurt, and TFCU as potentially interested par-ties. The Notice of Sale itemized the charges in a section of the notice entitled “DETAIL OF SERVICE(S) PROVIDED” as “Tow Charge $271.90 Storage Fee$1728 TAX $144.72 Process-ing Fee$ 20.76 TOTAL $2165.37” (capitalization and spacing in original). The notice stated “Storage of Possession” was for the period May 10, 2013, to August 18, 2013, at a charge of $18.00 per day.

¶6 TFCU filed a Petition on August 9, 2013, which named Wrecker, Remmers, and Hurt as parties, alleged non-payment of a $27,796.50 promissory note, and sought replevin of the Charger from Wrecker. TFCU alleged Wrecker took possession on or about May 10, 2013, any lien it may have was subordinate to TFCU’s lien due to Wrecker’s failure “to comply with Oklahoma law,” and that “Wrecker’s actions are a trespass to chattel” or, in the alternative, conversion. TFCU estimated the Charger’s value as $19,975.00 and that the balance due as of August 6, 2013, from Remmers and Hurt was $31,047.44 plus $2.7283 per day in interest. Wrecker filed its answer to TFCU’s Petition on September 3, 2013, in which it asserted, inter alia, that it held a valid superior possessory lien.

¶7 Wrecker filed a Motion for Summary Judgment on January 6, 2014. In its motion, Wrecker claimed its possessory lien was con-trolled by 42 O.S.Supp.2008 § 91A and it was acting in its capacity as a wrecker operator at the time it towed the Charger from near the intersection of the Broadway Extension and N. 122nd Street. Wrecker denied it was required to comply with 42 O.S.Supp.2003 § 91. Wrecker contended the Oklahoma Administrative Code (OAC) prohibited any towing or wrecking operator from operating a wrecker on public streets unless licensed, citing OAC 595:25-3-1(1).2 According to Wrecker, it received a request for a tow from the Oklahoma City Police Department on May 10, 2013, it towed

the Charger to Hurt’s residence so she could unload perishable groceries in the accident-damaged vehicle, and then towed the Charger to its current location in its lot. Wrecker stated TFCU applied for a temporary restraining order and injunction to prevent sale of the Charger, but the order granting the same never became effective due to TFCU’s “failure to comply with the bond-posting requirements of title 12, section 1392 of the Oklahoma Statutes.” Among the exhibits attached to Wrecker’s motion are copies of its Class AA license, a dis-patch report generated by Wrecker showing the customer name as “OCPD OR,” Wrecker’s DPS # 51574 form signed by Hurt,3 and an affi-davit from its Operations Manager which stat-ed that “on May 10, 2013, [Wrecker] received a request by the Oklahoma City Police Depart-ment to report to the scene of an accident and provide towing services” for the Charger, that it was towed to and is stored at Wrecker’s offices, and Wrecker had not been compensat-ed for towing or storage.

¶8 On January 24, 2014, TFCU filed a com-bined response to Wrecker’s motion and a counter-motion for summary judgment. TFCU contended Wrecker’s claim it may not operate without a Class AA license was “not supported by evidentiary material” required by court rules and was “nothing more than an unsup-ported, and incorrect, legal conclusion.” TFCU did not dispute that Wrecker was called to the accident scene by Oklahoma City Police, but it disputed Wrecker’s claim it was acting in its capacity as a Class AA wrecker operator be-cause it claimed the Charger was towed at Hurt’s request, not law enforcement’s request.4 In support of this assertion, TFCU attached as an exhibit a Department of Public Safety Report of Stored Vehicle Wrecker Services Division form which listed three reasons for impound-ment: “By owner’s request,””For law enforce-ment” or “From private property.” The form indicated the Charger was impounded “By owner’s request.” Consequently, TFCU rea-soned, § 91A did not apply, § 91 did apply, and its lien had priority because Wrecker did not comply with § 91. TFCU argued § 91A did not provide sufficient notice to interested parties and lien holders, and contended § 91’s notice requirements should apply. TFCU alleged that Wrecker converted the Charger, committed trespass, and TFCU was entitled to possession of the vehicle.


¶9 On February 14, 2014, Wrecker filed an untimely combined reply brief and response to TFCU’s counter-motion for summary judg-ment. In a February 21, 2014 e-mail5 to the par-ties’ counsel, the trial judge noted the matter had been taken under advisement, and that at a hearing the prior day he concluded the issue was one of law and there was no substantial controversy as to material facts. The trial judge concluded § 91 applied, and Wrecker had failed to comply with that section’s notice pro-visions. Wrecker’s motion for summary judg-ment was overruled, TFCU’s counter-motion for summary judgment was sustained, and preparation of a journal entry was ordered to be ready for signature in ten days.

¶10 On February 28, 2014, Wrecker filed a Motion to Settle Journal Entry and for Nunc Pro Tunc Enlargement of Time. Based upon alleged excusable neglect caused by newly installed software and docketing deadline con-version, Wrecker asked the trial court to allow filing of the untimely combined reply and response. TFCU filed a response and a counter-motion to settle journal entry on March 18, 2014, in which it argued Wrecker’s request to allow filing of the combined reply and response was an inappropriate attempt to retroactively modify the trial court’s order or judgment. Wrecker filed a combined response and reply on March 28, 2014, to TFCU’s response to Wrecker’s motion to settle journal entry and for nunc pro tunc enlargement of time. Wreck-er claimed TFCU’s proposed journal entry did not accurately reflect the trial court’s finding and that the trial court retained discretion to allow a late filing of the combined reply and response because the trial court’s findings only addressed the merits of the issue of lien superi-ority, not the timeliness of the combined reply and response. According to the trial court docket on April 3, 2014, Wrecker’s motion to settle the journal entry and for nunc pro tunc enlargement of time was sustained and an order was signed. No order bearing that date appears in the appellate record.

¶11 In a Journal Entry of Judgment filed on April 9, 2014, the trial court sustained TFCU’s Counter-Motion for Summary Judgment, struck Wrecker’s combined reply and response to that motion as “not timely filed and submitted to the Court in accordance with District Court Rule 4 and Local Rule 37,” stated Wrecker’s combined reply and response would not be considered, and denied Wrecker’s Motion for

Summary Judgment. The trial court held “OKLA. STAT. TIT. 42 §91 controls as opposed to OKLA. STAT. TIT. 42 §91A,” found TFCU had “a first and prior lien” on the Charger superior to Wrecker’s lien, and granted TFCU immediate possession of the vehicle.

¶12 On April 14, 2014, Wrecker filed a Motion for New Trial and Brief in Support. In it, Wrecker contended the trial court erred by fail-ing to apply the unambiguous and unequivo-cal provisions of § 91A. Wrecker also submited exhibits consisting of OAC code provisions on possessory liens and Packet 752 by the Okla-homa Tax Commission, which included in-structions and forms addressing possessory liens and for two processes for giving notice. Wrecker asserted these materials explained the notice required when the possessory lien claim-ant was not a licensed Class AA wrecker opera-tor, in which case § 91 provisions applied, and that the Oklahoma Tax Commission had direct-ed that the § 91 notice requirements did not apply when a possessory lien was claimed by a licensed Class AA wrecker. Wrecker argued the trial court should show deference to the agen-cy’s interpretation of its own rules and treat such an interpretation as persuasive authority, citing Cox Oklahoma Telecom, LLC v. State of Oklahoma ex rel. Oklahoma Corporation Commis-sion, 2007 OK 55, ¶ 23, 164 P.3d 150, 160. It argued TFCU’s contention that Wrecker engaged in business as a wrecker operator only when it towed or stored a vehicle at the direc-tion of law enforcement was a distinction unsupported in the controlling statutory lan-guage. Wrecker asserted applying § 91 required it to act in contravention of statutory require-ments for Class AA licensed wrecker services and that the failure to apply § 91A resulted in an error of law. Wrecker contended the trial court erred by failing to sustain the portion of its February 28, 2014 motion which requested an enlargement of time for filing of its com-bined reply and response.

¶13 In response to Wrecker’s Motion for New Trial, TFCU argued motions for new trial are strongly disfavored and the trial court interpreted and applied the law to “facts as conceded by [Wrecker’s] counsel.” TFCU quot-ed statutory provisions pertaining to require-ments for placement on official rotation logs for services requested by law enforcement enti-ties and contended these provisions supported its argument that a request from such entities was a key element “required for a wrecker


operator to be Class AA.” TFCU contended Wrecker “recognizes that mere possession of a Class AA licence does not make every act by the licensee an act to which Okla. Stat. tit. 42, § 91A applies” and that “depending on who requested the tow, a Class AA licensee’s status may change so that Okla. Stat. tit. 42, § 91A does not apply.” TFCU argued that Hurt requested the tow, so § 91A did not apply. TFCU asserted § 91 and § 91A “must serve dif-ferent functions, otherwise one of the statutes would be superfluous.” According to TFCU, adopting Wrecker’s statutory construction “would allow all Class AA wreckers to tow a vehicle upon the request of anyone, but not provide timely notice to lienholders, accumu-late exorbitant storage costs, and only then foreclose the purported special lien.” TFCU contented Wrecker’s statutory construction would allow any company possessing “the Class AA rating” to “skirt Okla. Stat. tit. 42, § 91’s notice requirements.” TFCU argued Wrecker’s exhibit consisting of Oklahoma Tax Commission paperwork was not newly dis-covered evidence and if Wrecker “wanted to bring this issue up, it should have done so in its original Motion for Summary Judgment,” (italics in original), but that even if it had done so, “it would not change the result” because the paperwork was not an interpretation and merely recited statutory language and provid-ed forms. TFCU contended the trial court did not abuse its discretion in overruling Wrecker’s request for enlargement of time and the case law cited by it did not support its excusable neglect argument. TFCU requested that Wreck-er’s motion for new trial be overruled and that it be granted its attorney fees and costs.

¶14 In a Journal Entry filed on June 16, 2014, the trial court denied Wrecker’s Motion for New Trial, established a bond amount for a stay, ordered the “return” of the Charger to TFCU by May 30, 2014, ruled TFCU may sell the Charger, and ordered proceeds from any sale to be escrowed until further order of the Court or agreement by the parties. Wrecker moved to certify the judgment as final under 12 O.S.2011 § 994. TFCU responded, stating it had no objection to certification and deferred to the Court on the issue of finality. On August 22, 2014, the trial court ordered the case certified as final under § 994, and this appeal followed.

THE APPEAL

¶15 Wrecker contends the trial court erred in denying its motions for summary judgment,

for new trial, and for settlement of the journal entry and enlargement of time. It also alleges the trial court erred by striking its combined reply and response. In the Summary of the Case section in Wrecker’s Petition in Error, it contends, inter alia, that it responded to the accident scene at the request of Oklahoma City Police, Hurt’s consent to towing after that request by law enforcement is irrelevant, it has not been paid for towing or storage, and it has a possessory lien to which § 91A applies. There is no dispute that TFCU has a lien arising from the purchase transaction for the Charger, Wrecker towed the Charger away from the accident scene on May 10, 2013, or Wrecker has a license as a Class AA licensed wrecker service.

¶16 Resolution of the parties’ controversy requires interpretation of § 91 and § 91A, and administrative code provisions regarding wreckers and towing, as those statutes and provisions existed at the time of the underlying events and the trial court’s judgment. When determining whether a statute applies to a given set of facts, the Court focuses on legisla-tive intent, which controls statutory interpreta-tion. Tulsa County Budget Board v. Tulsa County Excise Board, 2003 OK 103, n. 22, 81 P.3d 662, 676. “Intent is ascertained from the whole act in light of its general purpose and objective considering relevant provisions together to give full force and effect to each. The Court presumes that the Legislature expressed its intent and that it intended what it expressed.” Keating v. Edmondson, 2001 OK 110, ¶ 8, 37 P.3d 882, 886 (footnotes omitted). “However, where a strict, literal interpretation of the statute would lead to inconsistent or incongruent results between the enactment’s different parts, judicial interpretation becomes necessary to reconcile the discord.” State ex rel. Oklahoma State Department of Health v. Robertson, 2006 OK 99, ¶ 6, 152 P.3d 875, 878. “In determining leg-islative intent, this Court will not limit consid-eration to one word or phrase but will consider the context of the ambiguous provision.” St. John Medical Center v. Bilby, 2007 OK 37, ¶ 6, 160 P.3d 978, 979. “Statutory interpretation raises a legal question which is subject to a de novo standard of review. An appellate court is endowed with ple-nary, independent and nondeferential authori-ty to re-examine a trial court’s legal rulings.” State ex rel. Department of Transportation v. Little, 2004 OK 74, ¶ 10, 100 P.3d 707, 711 (footnotes omitted).


¶17 On appeal, Wrecker asserts that the trial court erred by applying § 91 rather than § 91A when determining lien priorities. Section 91A (A)(1)(a)(2) of Title 42 provides that it applies to all types of personal property other than “’Section 91 Personal Property’ as defined in Section 91 of this title,” and 42 O.S.2011 § 91A(A)(1)(b) provides that “[t]his section applies to any vehicle . . . that is excluded from coverage under subsection A of Section 91 of this title” because, under subsection (b)(4) of § 91A(A)(1), that personal property “is otherwise excluded by subsection D of Section 91 of this title.”

¶18 Section § 91(A)(1) provides:

This section applies to every vehicle, all-terrain vehicle, utility vehicle, manufac-tured home, motorcycle, boat, outboard motor, or trailer that has a certificate of title issued by the Oklahoma Tax Commission or by a federally recognized Indian tribe in the State of Oklahoma, except as otherwise provided in subsection D of this section. (Em-phasis added.)

At the time of this controversy, “subsection D of this section” provided, at subsection (D)(4):

Salvage pools as defined in Section 591.2 of Title 47 of the Oklahoma Statutes and class AA licensed wrecker operators in their capacity as wrecker operators shall not be subject to the provisions of this section. Salvage pools as defined in Section 591.2 of Title 47 of the Oklahoma Statutes and class AA licensed wrecker operators shall be subject to Section 91A of this title.

(Emphasis added.)

Under both § 91 and § 91A, the Legislature provided that Class AA licensed wrecker oper-ators, when acting in their capacity as wrecker operators, are treated differently in how a pos-sessory lien may be acquired.6 A simple read-ing of these statutes may appear to answer the question of which statute applies, except that 47 O.S.2011§ 91A(D)(9) contains a limitation on its application which states: “This section ap-plies to class AA licensed wrecker operators in their capacity as wrecker operators with respect to all types of personal property, regardless of whether that personal property has a certificate of title.” (Emphasis added).

¶19 In the trial court, TFCU argued Wrecker was not acting in this capacity and thus § 91A

did not apply. Wrecker argued neither the stat-utes nor the administrative code stated a Class AA wrecker was only acting in the capacity of a wrecker operator when performing towing for law enforcement agencies. Wrecker assert-ed it was licensed and therefore met require-ments TFCU references but misconstrues. Wrecker contended TFCU’s broad policy argu-ments about notice ignored the apparent legis-lative intent to treat Class AA wrecker opera-tors differently than other wrecker operators, ignored the notice provisions provided in § 91A, and ignored that Wrecker complied with notice provisions in § 91A.

¶20 A statutory scheme addressing wreckers and towing services is found at 47 O.S.2011 § 951, et seq., including definitions for terms “[a]s used in Sections 951 through 965 of this title and Sections 1 through 3 of this act.” 47 O.S.2011 § 951. Section 591(6) of Title 47 defines, in pertinent part, “’Wrecker or towing service’ means engaging in the business of or perform-ing the act of towing or offering to tow any vehicle,” and 47 O.S.2011 § 951(3) defines “tow” or “towing” as “the use of a wrecker vehicle to lift, pull, move, haul or otherwise transport any other vehicle by means of: a. attaching the vehicle to and pulling the vehicle with the wrecker vehicle, or b. loading the vehicle onto and transporting the vehicle upon the wrecker vehicle.” Section 951(11) provides “’Operator’ means any person owning or oper-ating a wrecker vehicle or wrecker or towing service.”

¶21 Section 952(B) of Title 47 provides that the Department of Public Safety “shall adopt and prescribe” rules necessary to carry out the intent of § 951, et seq. and that such rules

shall state the requirements for facilities, for storage of vehicles, necessary towing equipment, the records to be kept by oper-ators, liability insurance and insurance covering the vehicle and its contents while in storage in such sum and with such pro-visions as the Department deems necessary to adequately protect the interests of the public, and such other matters as the Department may prescribe for the protec-tion of the public.

Permanent rules governing wreckers and towing services appear in Chapter 25 of Title 595 in the Oklahoma Administrative Code (OAC). According to the definitions found in OAC 595:25-1-2, effective on July 1, 2012, “[a]ny


reference to ‘this Act’ means 47 O.S. § 951 et. seq. unless otherwise specified,” and “when used in this Chapter,” the words and terms defined “shall have the following meaning” unless the context “clearly indicates other-wise.” OAC 595:25-1-2(c) provides: “All rules in this Chapter are subject to the Administra-tive Procedures Act 75 O.S. § 309, et seq., and to 47 O.S. § 951 et seq., which shall be incorporat-ed herein by reference, as applicable to the Department [of Public Service] and all parties governed by this Chapter.”

¶22 The term “wrecker operator” is defined in OAC 595:25-1-2 as “any operator who is licensed7 under this Chapter and the laws of this state and who meets all requirements of the rules of this Chapter, pertaining to wrecker vehicles as defined in this Chapter.” OAC 595:25-1-2 provides, in pertinent part:

“Wrecker” or “wrecker vehicle,” as de-fined by 47 O.S. § 951, et seq., means any vehicle, other than a transport as defined in 47 O.S. § 1-181, equipped with a winch, cable or other device designed to lift, pull or move a disabled vehicle incapable of self-propulsion. (Does not include a vehicle with a push bumper only.)

(A) Class AA - Any wrecker vehicle not less than nine thousand pounds (9,000 lbs.) GVWR and meeting minimum require-ments as established for Class AA Wreck-ers in this Chapter.

* * * * *

(D) Class General - All other wrecker vehi-cles as defined by 47 O.S. § 951, et. seq., pro-vided a Class General wrecker shall also be considered a wrecker support vehicle for the purposes of 47 O.S. § 12-218.1.8

¶23 The administrative rules for wreckers and towing services contain the following defi-nition: “’Class AA wrecker operator’ or ‘AA truck wrecker operator’ means any wrecker operator who also meets all the requirements of 47 O.S. § 952(D) for towing for law enforce-ment agencies.” OAC 595:25-1-2 (bold in origi-nal). The requirements referenced in OAC 595:25-1-2 and set forth in 47 O.S.2011 § 952(D) provide:

Except as otherwise provided in this sub-section, the Department and any munici-pality, county or other political subdivision of this state shall not place any wrecker or

towing service upon an official rotation log for the performance of services carried out pursuant to the request of or at the direc-tion of any officer of the Department or municipality, county or political subdivi-sion unless the service meets the following requirements:

1. Principal business facilities are located within Oklahoma;

2. Tow trucks are registered and licensed in Oklahoma; and

3. Owner is a resident of the State of Okla-homa or the service is an Oklahoma corpo-ration.

In the event a licensed wrecker or towing service is not located within a county, a wrecker or towing service that is located outside of the county or this state and does not meet the above qualifications may be placed on the rotation log for the county or any municipality or political subdivision located within the county.

When performing services at the request of any officer, no operator or wrecker or tow-ing service upon the rotation logs shall charge fees in excess of the maximum rates for services performed within this state, including incorporated and unincorporated areas, as established by the Commission.

¶24 Similar to the definition found in § 951(6)9 and citing to that section, OAC 595:25-1-2 provides, in pertinent part, that “’Wrecker or towing service’, ‘wrecker service”, or ‘tow-ing service’ means engaging in the business of or performing the act of towing or offering to tow any vehicle. . . .[47 O.S. § 951(6)].” (Empha-sis and brackets in original.)

¶25 Relevant to TFCU’s contention Wrecker was not acting in its capacity as a wrecker operator, we also note the following additional, pertinent definitions: “’Call’ means each re-quest for service of an operator resulting in an operator being able to receive compensation for these services”; “’Officer’ means any peace officer”; “’Operator’ means any person or legal entity owning or operating a licensed wrecker vehicle or a licensed wrecker or towing service and any employee thereof,” and “’Owner request tow’ means a tow of vehicle made by an operator, or authorized agent of the owner and which is not compelled or required by a law enforcement officer.” OAC 595:25-1-2. In


addition, OAC 595:25-1-2 contains the follow-ing provisions.

“Law enforcement tow” means a tow of a vehicle made by an operator when a law enforcement officer compels a vehicle to be towed or makes a request for a tow using a law enforcement rotation log and to which the rates and fees as prescribed by the Cor-poration Commission shall apply.

* * * * *

“Private property tow” means a tow of a vehicle which is made from private prop-erty by an operator at the request of the owner, legal possessor, or authorized agent in control of the real property, which shall be towed under the provisions of 47 O.S. § 954A and to which the rates and fees as prescribed by the Corporation Commis-sion shall apply.

* * * * *

“Rotation log” means a list for each High-way Patrol Troop of the Department of cur-rent Class AA wrecker operators whose places of business are within the geograph-ical boundaries of the Troop and who have requested and been approved by the Department to be on the list. This list gov-erns the alternation among approved Class AA wrecker operators meeting the qualifi-cation of various categories of Class AA wrecker services except Class AA-TL wrecker vehicles.

* * * * *

“Tow/Towing” “means the use of a wrecker vehicle to lift, pull, move, haul or otherwise transport any other vehicle by means of: (a) attaching the vehicle to and pulling the vehicle with the wrecker vehicle, or (b) loading the vehicle onto and transporting the vehicle upon the wrecker vehicle”. [47 O.S. § 951(3)]

(Italics and bracketed statutory citation in original.)

¶26 The May 10, 2013 towing does not fall under the definition for a private property tow.10 Wrecker received a call from a law enforcement officer, namely Oklahoma City Police, Wrecker responded to that call, and the Charger, in a condition described as “wrecked,” was towed from the accident scene. When so performing, Wrecker acted in its capacity as a wrecker operator.

¶27 Section 91(D)(4) provides that class AA licensed wrecker operators in their capacity as wrecker operators shall not be subject to the provisions of that section and “shall be subject to Section 91A of this title.” We will not ignore this statutory language and engraft by judicial construction the additional requirements sug-gested by TFCU, i.e., an interpretation that licensed Class AA wreckers only operate “in their capacity as wrecker operators” and ac-quire a possessory lien under § 91A if law enforcement both requests and specifically directs it as to towing services.11 Such require-ments would require adoption of an interpreta-tion rendering nugatory portions of the statu-tory scheme here reviewed. Class AA is a licensing status dependent upon meeting stat-utory classifications regarding equipment, the physical location of the wrecker operator’s business, tow truck licensing and registration, the residency of a company’s ownership, fee limitations, and placement on law enforcement rotation logs (even when not meeting other qualifications, see § 952(D)) when no licensed wrecker or towing service is located in a coun-ty. Whether the May 10, 2013 towing met all qualifications for a “law enforcement tow” was not dispositive regarding the applicability of § 91A. Wrecker was called to the accident scene by police, and it then towed and stored the Charger, all of which were actions taken in the capacity of a wrecker operator. Wrecker’s Class AA licensing status did not disappear because, after Wrecker had responded to a law enforce-ment request for towing, Hurt signed a form which authorized removal of the Charger from the accident scene.

¶28 The words or phrases used by the Legis-lature are to be understood in the context of all of the statute and not in an abstract sense. Mat-ter of Estate of Little Bear, 1995 OK 134, ¶ 22, 909 P.2d 42, 55. “[W]here the meaning of the former statute was subject to serious doubt, or where controversies concerning its meaning had aris-en, it may be presumed that the amendment was made to more clearly express the legislative intention previously indefinitely expressed.” Magnolia Pipe Line Co. v. Oklahoma Tax Commis-sion, 1946 OK 113, ¶ 11, 167 P.2d 884, 888. We may look to subsequent amendments to ascer-tain what the Legislature previously intended. Hollytex Carpet Mills v. Hinkle, 1991 OK CIV APP 43, ¶ 11, 819 P.2d 289, 291-292.

Effective November 1, 2014, subsection D of § 91 was amended by deleting subsection D(4)


and adding subsection (A)(2)(b), which pro-vides, in pertinent part, that:

class AA licensed wrecker services taking possession of a vehicle pursuant to an agreement with or at the direction of, or dis-patched by, a state or local law enforcement or government agency, or pursuant to the aban-doned vehicle renewal provisions of Section 954A of Title 47 of the Oklahoma Statutes, shall not be subject to the provisions of this sec-tion, but shall be subject to the provisions of Sec-tion 91A of this title. Unless otherwise provid-ed by this subparagraph, class AA licensed wrecker services performing consensual tows shall be subject to the provisions of this section (emphasis added).

Also effective November 1, 2014, § 91A(D)(9) was amended to provide:

This section applies to class AA licensed wreck-er services taking possession of a vehicle pursuant to an agreement with, or at the direction of, or dispatched by a state or local law enforcement or government agency, or pursu-ant to the abandoned vehicle removal pro-visions of Section 954A of Title 47 of the Oklahoma Statutes with respect to all types of personal property, regardless of whether that personal property has a certificate of title (emphasis added).

Consequently, under either the statutes appli-cable at the time of this controversy or those subsequently enacted, § 91A applies.

¶29 The trial court erred as a matter of law by concluding § 91 applied to Wrecker’s lien. The Journal Entry of Judgment denying Wrecker’s motion for summary judgment and granting the motion for summary judgment of TFCU is premised on an error of law. Wrecker was entitled to judgment on its motion for summa-ry judgment under § 91A as a matter of law.

¶30 When determining whether the trial court abused its discretion in denying Wreck-er’s Motion for New Trial, we review the record and the arguments raised in favor of the motion. Where, as here, our assessment of the trial court’s exercise of discretion in denying a new trial rests on the propriety of the underly-ing grant of summary judgment, the abuse-of-discretion question is settled by our de novo review of the summary adjudication’s correct-ness. Reeds v. Walker, 2006 OK 43, ¶ 9, 157 P.3d 100, 107. Wrecker premised its Motion for New Trial on the applicability of § 91A. The trial

court’s Journal Entry denying Wrecker’s Mo-tion for New Trial is REVERSED. No allega-tions of error directly address the portion of the Journal Entry setting bond, allowing for sale of the Charger or placement of any sales proceeds in escrow pending further trial court orders or agreement of the parties. The matter is RE-MANDED for further proceedings consistent with this opinion.

¶31 Lastly, we address Wrecker’s contention the trial court erred by striking its combined reply and response to TFCU’s counter-motion for summary judgment because it was filed untimely. The trial court acted within its discre-tion as to the untimely filing and no abuse is demonstrated. No reversible error is presented.

CONCLUSION

¶32 The trial court erred in applying § 91 rather than § 91A to this controversy over the priority of liens between a Class AA licensed wrecker operator and TFCU. The Journal Entry of Judgment granting TFCU’s counter-motion for summary judgment and denying Wrecker’s motion for summary judgment is REVERSED, the Journal Entry denying Wrecker’s Motion for New Trial is REVERSED, and the cause is REMANDED for proceedings consistent with this opinion.

REVERSED AND REMANDED

MITCHELL, P.J., and JOPLIN, J., concur.

Wm. C. Hetherington, Jr., Chief Judge:

1. The judgment left unresolved any claims regarding the remain-ing two defendants, Remmers and Hurt. The trial court entered an order making the requisite findings pursuant to 12 O.S.2011 § 994(A) for appellate review of the final order as to Wrecker and TFCU.

2. Effective since at least 2002, over a decade prior to the events in this lawsuit, this administrative rule has provided:

License required. No operator as defined by law, regardless of storage location, shall operate a wrecker vehicle upon any public street, road or highway of this state for the offering to tow vehi-cles or to transport property or the actual towing of vehicles or transporting of property without first obtaining from the Depart-ment a license as provided in this Chapter. Any wrecker vehicle being operated on any public street, road, highway or turnpike in violation of Oklahoma law or these rules may be removed from service by Oklahoma law enforcement officers.

(Emphasis in original.)3. The form was signed by Hurt in three places — one indicating

billing was to her and two places under a portion for remarks. A “con-dition” section was checked for “wrecked.” In a section with car out-lines entitled “MARK EXTERIOR DAMAGE,” areas colored on the outlines included: the front from the passenger side to just short of the driver’s side headlight, the left side front quarter panel, the right side rear quarter panel, the front part of the right side front quarter panel, and the left side rear tire.

4. TFCU cited OAC 595:25-1-2 as its authority, but did not specify which of the over 20 unnumbered definitions listed therein was the intended authority.

5. A copy of this e-mail message later appeared in the appellate record as an exhibit to Wrecker’s Motion for New Trial and Brief in Support.


6. Both statutory sections provide for special possessory liens for rendering services by “furnishing storage, rental space, material, labor or skill for the protection, improvement, safekeeping, towing, right to occupy space, storage or carriage thereof.” 42 O.S.2011 § 91(A)(2) and 42 O.S.2011 § 91A(A)(c)(2).

7. OAC 595:25-1 contains the following definition: “’Wrecker license’ means the wrecker license as provided by 47 O.S. § 951, et seq.” (bold in original; no italics in original).

8. Section 12-218.1, effective November 1, 2010, deals with emer-gency lighting and other equipment that is not involved in this contro-versy and does not provide guidance as to definitions or interpreta-tions relevant to this appeal.

9. The definitions in both § 951(6) and OAC 595:25-1-2 contain exceptions not applicable to this controversy, such as for wrecker vehicles displaying “not for hire” signs, for wreckers owned by gov-ernmental entities, for out-of-state wrecker services, for transporters of farm tractors as defined in 47 O.S.2011 § 1-181, and for transporters of household goods.

10. TFCU noted Wrecker’s counsel had stated the statutory appli-cation might have been altered if the Charger was unhooked at Hurt’s residence. Had this occurred, a subsequent tow could be construed as from private property and also to meet the definition of an “owner request tow.” However, this did not occur, leaving, the question of capacity “as a wrecker operator” for determination.

11. Such a construction would appear to allow § 91A to apply only when law enforcement impounded a vehicle for evidence, when a vehicle was abandoned, or when a vehicle was towed without the permission of an owner, legal possessor, or authorized agent. See 47 O.S.2011 § 951(10), 47 O.S.Supp.2010 § 954A, and 47 O.S.2011 § 955. Further, the Legislature has provided requirements for notice and the foreclosure of special liens for expenses incurred regarding abandoned vehicles in provisions for sale under 47 O.S.2011 § 908 through 47 O.S.2011 § 911 when a “vehicle’s removal has been authorized by any public agency.” 47 O.S.Supp.2006 § 951(A).

2016 OK CIV APP 39

Danny and Kim Avens, individually and on behalf of all others similarly situated,

Plaintiffs, vs. COTTON ELECTRIC COOPERATIVE, INC., an Oklahoma

corporation, Defendant/Appellant, and BROTHERHOOD MUTUAL INSURANCE COMPANY; and AMERICAN fARMERS &

RANCHERS MUTUAL INSURANCE COMPANY, f/k/a OKLAHOMA fARMERS

UNION MUTUAL INSURANCE COMPANY, Appellees.

Case No. 113,439. December 18, 2015

APPEAL FROM THE DISTRICT COURT OF STEPHENS COUNTY, OKLAHOMA

HONORABLE JOE H. ENOS, JUDGE

AFFIRMED

Richard E. Hornbeek, Daniel E. Bryan, III, Lane M. Claussen, Hornbeek Vitali & Braun, P.L.L.C., Oklahoma City, Oklahoma, for Appellant,

David B. Donchin, Katherine T. Loy, Durbin, Larimore & Bialick, Oklahoma City, Oklahoma, for Appellees.

Larry Joplin, Judge:

¶1 Defendant/Appellant Cotton Electric Cooperative, Inc., an Oklahoma corporation (CEC or Defendant), seeks review of the trial

court’s order denying its motion to assess attorney’s fees and costs against Appellees Brotherhood Mutual Insurance Company (BMI) and American Farmers & Ranchers Mutual Insurance Company, f/k/a Oklahoma Farmers Union Mutual Insurance Company (AFR, or, collectively with BMI, Insurers), after entry of judgment on a jury’s verdict for CEC in the class action prosecuted by Plaintiffs Danny and Kim Avens (Plaintiffs) to recover damages for injury to the class members’ real property in a wild fire. In this appeal, CEC asserts that, as prevailing party on the Plain-tiffs’ class claim for injury to real property, it is entitled to an award of attorney’s fees and costs under 12 O.S. §940 against Insurers, real parties in interest, and the trial court erred as a matter of law and fact in holding otherwise.

¶2 On March 1, 2006, a wild fire burned more than 13,000 acres in Stephens County, Oklaho-ma. In 2007, six actions by insurers of property owners damaged in the fire, including Insurers, commenced subrogation actions against CEC.

¶3 In 2008, Plaintiffs commenced the instant class action for themselves and others similarly situated in Carter County District Court, and alleged CEC’s negligence caused the fire. Plain-tiffs were eventually named class representa-tives, the action was transferred to the trial court in Stephens County where the fire occurred and, in April 2012, the trial court cer-tified a class composed of “all claimants who owned property in Oklahoma, and/or are resi-dents of Oklahoma who suffered loss of per-sonal property and/or real property resulting from the” fire on March 1, 2006.

¶4 Insurers cooperated in discovery, but paid none of the litigation expenses, and took no active part in the conduct of the litigation. Insurers did not pursue the subrogation action commenced prior to this class action, and the trial court eventually dismissed the prior case for lack of prosecution.

¶5 Over three days in April 2014, Plaintiffs and CEC presented testimony and evidence to a jury. Upon deliberation, the jury returned a verdict for CEC. After judgment, Plaintiffs and CEC entered into a settlement agreement, by which Plaintiffs agreed not to appeal and CEC agreed not to seek an award of attorney’s fees and costs against the class representative Plaintiffs.

¶6 As prevailing party under §940, CEC thereafter filed an application for an award of


more than $400,000.00 in attorney’s fees and costs against Insurers as class members and real parties in interest. Insurers objected and argued that, inasmuch as they did not file the class action, did not instigate its filing, did not finance the litigation or pay any litigation expenses, did not control the litigation and did not participate in the litigation, there existed no authority to require them to pay any attorney’s fees or costs of CEC.

¶7 After a hearing, the trial court denied CEC’s application, finding no legal authority to impose an award of attorney’s fees and costs against a mere insurer of a class member. CEC appeals.

¶8 Whether a prevailing party is entitled to an award of attorney’s fees under §940 consti-tutes “a question of law which we review de novo,” and the appellate courts possess “ple-nary, independent, and non-deferential author-ity to reexamine a trial court’s legal rulings.” Finnell v. Seismic, 2003 OK 35, ¶7, 67 P.3d 339, 342. (Footnotes omitted.) If a successful plain-tiff is statutorily entitled to an award of attor-ney’s fees, a successful defendant is likewise statutorily entitled to an award of attorney’s fees. See, Professional Credit Collections v. Smith, 1997 OK 19, ¶14, 933 P.2d 307, 311.1

¶9 CEC is undoubtedly the prevailing party on the Plaintiffs’ claims for damage to real property and, as the prevailing defendant under §940, CEC would be statutorily entitled to an award of prevailing party attorney’s fees against the Plaintiffs but for CEC’s settlement agreement to forebear such a request. The un-answered question remains, however, whether CEC is entitled to an award of prevailing party attorney’s fees against either a member of the class represented by the Plaintiffs, or a mere insurer of a member of the class represented by the Plaintiffs.

¶10 In this respect, the Oklahoma class action statute permits, but does not mandate, an “award of reasonable attorney fees and nontax-able costs that are authorized by law or by the parties’ agreement.” 12 O.S. Supp. 2013 §2023 (G)(1).2 However, §2023 is otherwise silent on the issue of whether attorney’s fees may be awarded for the successful defense of a class action. Section 2023 is nearly identical to Rule 23 of the Federal Rules of Civil Procedure, and we may look to federal decisions applying F.R.C.P. Rule 23 as instructive. See, e.g., Dewey v. State ex rel. Oklahoma Firefighters Pension and Retirement System, 2001 OK 40, 28 P.3d 539;

Shores v. First City Bank Corp., 1984 OK 67, 689 P.2d 299.

¶11 In this respect, class members “are almost never subject to counterclaims or cross-claims, or liability for fees or costs.” Phillips Petroleum Company v. Shutts, 472 U.S. 797, 810, 105 S.Ct. 2965, 2974, 86 L.Ed.2d 628 (U.S. (Kan.) 1985). More particularly:

[M]embers of the class other than plaintiffs, who do not request exclusion, are not par-ties and would not be liable for costs even though otherwise bound by the judgment, whether favorable or unfavorable. The conclusion that members of the class do not become “parties” appears implicit from Rule 23(a)(1), which provides that a class action may be maintained only when “the class is so numerous that joinder of all members is impracticable.”

As further indication that Rule 23 does contemplate that absent class members are not “parties,” reference is made to the pro-visions of Rule 23(d)(2), F.R.C.P., which specifically provides that the court may notify class members that they have the option to “appear” in the case as parties through counsel of their own selection. If class members were automatically deemed parties, all class actions would be convert-ed into massive joinders. Such a result would emasculate Rule 23.

Upon reconsideration, this Court is of the opinion that members of the class who do not opt out and do not appear especially by counsel of their own selection are not “par-ties” to the action. Accordingly, they would not be liable for any costs or expenses assessed against the representative parties plaintiff.

Lamb v. United Sec. Life Co., 59 F.R.D. 44, 48-49 (S.D. Iowa 1973).

¶12 In this respect, the 10th Circuit Court of Appeals has cited Lamb as expressing the cor-rect rule for the assessment of costs under Oklahoma law. In re Four Seasons Sec. Laws Litig., 525 F.2d 500, 504 (10th Cir. 1975). The Ninth Circuit Court of Appeals has also relied on Lamb to hold class members ordinarily bear no liability for fees or costs. Wright v. Schock, 742 F.2d 541, 545 (9th Cir. 1984).3 Indeed, it appears commentators and the courts of other jurisdictions agree that class members are not liable for attorney’s fees upon a judgment


adverse to the class. See, e.g., Turner v. Alaska Communications Sys. Long Distance, Inc., 78 P.3d 264, 266 (Alaska 2003).4

¶13 We are persuaded these cases and authorities express the correct construction of Oklahoma’s class action statute. We conse-quently hold, under the circumstances of this case, an award of attorney’s fees against a class member, or a mere insurer of a class member, who has undertaken no participation in the liti-gation, is not proper upon a judgment adverse to the class. The trial court in the present case did not err in denying CEC’s motion to assess attor-ney’s fees and costs against Insurers.

¶14 The order of the trial court is AFFIRMED.

MITCHELL, P.J., and HETHERINGTON, C.J., concur.


1.”A statute violates equal access to the courts when it treats — for attorney’s fee purposes — the victorious plaintiff differently from a successful defendant.”

2. “In a certified class action, the court may award reasonable attor-ney fees and nontaxable costs that are authorized by law or by the parties’ agreement.” (Emphasis added.)

3. “Absent class members have no obligation to pay attorneys’ fees and litigation costs, except when they elect to accept the benefit of the litigation. Lamb v. United Security Life Co., 59 F.R.D. 44, 48-49 (S.D. Iowa 1973); 2 Newberg on Class Actions §2780 (1977).”

4. “It is well established that absent members of a class generally are not held liable for attorney’s fees: ‘An absent class member is not personally liable for litigation expenses or attorney’s fees except inso-far as there is a common fund recovery for the class.’” (Citing, 1 Her-bert Newberg & Alba Conte, Newberg on Class Actions §1.03, at 1-12 (3d ed.1992).)

2016 OK CIV APP 40

GEORGETTA ANDERSON, Administrator of the Estate of Steve Anderson, Plaintiff/Appellant, vs. DANIEL MORGAN, M.D.,

Defendant/Appellee.

Case No. 113,619. November 20, 2015

APPEAL fROM THE DISTRICT COURT Of COMANCHE COUNTY, OKLAHOMA

HONORABLE EMMIT TAYLOE, JUDGE

AffIRMED

Mike Markey, Wichita Falls, Texas, for Plain-tiff/Appellant,

Glen D. Huff, Robert D. Hoisington, Lauren K. Lindsey, Oklahoma City, Oklahoma, for Defen-dant/Appellee.

Bay Mitchell, Presiding Judge:

¶1 Plaintiff/Appellant Georgetta Anderson (Anderson) appeals from a summary judgment in favor of Defendant/Appellee Daniel Mor-

gan, M.D. (Dr. Morgan). Anderson claims the trial court erred as a matter of law when it found the Oklahoma Governmental Tort Claims Act (the Act) applied to Anderson’s medical negligence lawsuit. After de novo re-view, we affirm.

¶2 As the administrator of her husband Steve’s estate, Anderson sued Dr. Morgan, alleging medical negligence in the placement of a graft in Steve’s arm. Dr. Morgan practiced with a surgical group that had been purchased by the Comanche County Hospital Authority (Hospital) and was an employee of Hospital. Anderson did not name Hospital in the peti-tion or notify Hospital of the lawsuit as required by the Act. Dr. Morgan filed a motion for sum-mary judgment alleging that, due to his employment with Hospital, he was immune from civil liability under the Act and was an improper party to the action. Anderson argued the Act did not apply because Dr. Morgan was not an employee as defined by the Act and, therefore, Anderson was a proper party for suit. The trial court granted Dr. Morgan’s motion. Anderson appeals this judgment.

¶3 Whether summary judgment was prop-erly entered is a question of law, which we review de novo. Horton v. Hamilton, 2015 OK 6, ¶8, 345 P.3d 357, 360. De novo review is a ple-nary, independent and non-deferential reex-amination of the trial court’s ruling. Kluver v. Weatherford Hospital Authority, 1993 OK 85, ¶14, 859 P.2d 1081, 1084. Summary judgment will be affirmed only if we determine there is no dis-pute as to any material fact and the moving party is entitled to judgment as a matter of law. Horton, ¶8, 345 P.3d at 360.

¶4 As a public trust hospital created to ben-efit Comanche County, Hospital is a political subdivision.1 Under the Act, an employee of the state or a political subdivision cannot be individually sued for actions arising out of the scope of his employment; instead, suit must be brought against the state or political subdi-vision. See 51 O.S. 2011 §§153 and 163(C). The key question, then, is whether Dr. Morgan is an “employee” of a political subdivision such that he is immune from liability under the Act. In construing the Act, our fundamental goal is to ascertain and give effect to legislative intent. Humphries v. Lewis, 2003 OK 12, ¶7, 67 P.3d 333, 335.

¶5 Title 51 O.S. Supp. 2008 §152(6), the stat-ute in effect during Steve’s injury, broadly


defines “employee” as “any person who is authorized to act in behalf of a political subdi-vision or the state whether that person is acting on a permanent or temporary basis, with or without being compensated or on a full-time or part-time basis.” The statute also provides:

b. For the purpose of The Governmental Tort Claims Act, the following are employ-ees of this state, regardless of the place in this state where duties as employees are performed:

(1) physicians acting in an administrative capacity,

(2) resident physicians and resident interns participating in a graduate medical educa-tion program of the University of Oklaho-ma Health Sciences Center, the College of Osteopathic Medicine of Oklahoma State University, or the Department of Mental Health and Substance Abuse Services,

(3) faculty members and staff of the Univer-sity of Oklahoma Health Sciences Center and the College of Osteopathic Medicine of Oklahoma State University, while engaged in teaching duties,

(4) physicians who practice medicine or act in an administrative capacity as an employ-ee of an agency of the State of Oklahoma,

(5) physicians who provide medical care to inmates pursuant to a contract with the Department of Corrections,

(6) any person who is licensed to practice medicine pursuant to Title 59 of the Okla-homa Statutes, who is under an adminis-trative professional services contract with the Oklahoma Health Care Authority un-der the auspices of the Oklahoma Health Care Authority Chief Medical Officer, and who is limited to performing administra-tive duties such as professional guidance for medical reviews, reimbursement rates, service utilization, health care delivery and benefit design for the Oklahoma Health Care Authority, only while acting within the scope of such contract,

(7) licensed medical professionals under contract with city, county, or state entities who provide medical care to inmates or detainees in the custody or control of law enforcement agencies, and

(8) licensed mental health professionals as defined in Sections 1-103 and 5-502 of Title 43A of the Oklahoma Statutes, who are conducting initial examinations of indi-viduals for the purpose of determining whether an individual meets the criteria for emergency detention as part of a con-tract with the Department of Mental Health and Substance Abuse Services.

. . . .

c. Except as provided in subparagraph b of this paragraph, in no event shall the state be held liable for the tortious conduct of any physician, resident physician or intern while practicing medicine or providing medical treatment to patients[.]

¶6 In Price v. Wolford, 2006 OK CIV APP 129, 148 P.3d 888, plaintiffs sued several physicians practicing medicine at a public trust county hospital. The court addressed whether the physicians were “employees” immune from liability under the Act. Price concluded the defendant physicians could only be immune under the Act if they came within the defini-tion of “employee” in §152(5)(b)(4).2, 3 Although Price acknowledged the hospital was a political subdivision, it further concluded that because the physicians were not employees “of an agency of the State” (emphasis added) they had no immunity under the Act.4

¶7 Price, however, overlooked that subsec-tion (b) defines only which physicians are employees of the state and does not address which physicians are employees of a political subdivision. See 51 O.S. Supp. 2008 §152(6)(b) (“For the purpose of The Governmental Tort Claims Act, the following are employees of this state . . . .”) (emphasis added). Likewise, sub-section (c) specifically limits only the state’s liability for a physician’s tortious conduct. See id., §152(6)(c) (“Except as provided in subpara-graph b of this paragraph, in no event shall the state be held liable for the tortious conduct of any physician . . . .”) (emphasis added).

¶8 The Act as a whole distinguishes between “state” and “political subdivision.” The terms are separately defined. See 51 O.S. Supp. 2008 §152(10) and (12). Where a statute references only one, the Legislature clearly intended to treat the two differently. See, e.g., 51 O.S. 2011 §156(C) and (D) (providing that a claim against the state shall be filed with the Office of the Risk Management Administrator of the Depart-ment of Central Services, while a claim against


a political subdivision shall be filed with the office of the clerk of the governing body). Oth-erwise, statutes throughout the Act consistent-ly group the two together, referring to “the state or a political subdivision” or “the state and its political subdivisions.” See, e.g., 51 O.S. 2011 §§153-160.

¶9 The provisions of §152(6)(b) and (c) could have applied to political subdivisions as well as the state had the Legislature intended, but it did not. See Patterson v. Beall, 2000 OK 92, ¶24, 19 P.3d 839, 845 (“[T]he maxim ‘expressio unius est exclusio alterius,’ that the mention of one thing in a statute impliedly excludes anoth-er thing, is used to determine legislative intent.”). Accordingly, we hold §152(6)(b) does not apply to this case. Dr. Morgan falls into the general definition of “employee,” i.e., he is a “person who is authorized to act in behalf of a political subdivision[.]” See 51 O.S. Supp. 2008 §152(6). As an employee of a political subdivi-sion, he could not be individually sued for actions arising out of the scope of his employ-ment. See 51 O.S. 2011 §§153 and 163(C).

¶10 Because Dr. Morgan was entitled to judgment as a matter of law, we find the trial court properly granted Dr. Morgan’s motion for summary judgment.

¶11 AFFIRMED.

HETHERINGTON, C.J., and JOPLIN, J., concur.

Bay Mitchell, Presiding Judge:

1. A “political subdivision” is defined, in part, as follows:[A] public trust where the sole beneficiary or beneficiaries are a city, town, school district or county. For purposes of The Govern-mental Tort Claims Act, a public trust shall include a municipal hospital created pursuant to Section 30-101 et seq. of Title 11 of the Oklahoma Statutes, a county hospital created pursuant to Section 781 et seq. of Title 19 of the Oklahoma Statutes, or is cre-ated pursuant to a joint agreement between such governing authorities, that is operated for the public benefit by a public trust created pursuant to Section 176 et seq. of Title 60 of the Oklahoma Statutes and managed by a governing board appoint-ed or elected by the municipality, county, or both, who exercises control of the hospital, subject to the approval of the governing body of the municipality, county, or both[.]

51 O.S. Supp. 2008 §152(10)(d).2. In Price, the relevant 2003 statutory language was found at

§152(5). That language was renumbered in 2008 to §152(6). Currently, that language is found at §152(7). The relevant portions of §152 have not changed since Price was decided.

3. “Employee” means any person who is authorized to act in behalf of a political subdivision or the state whether that person is act-ing on a permanent or temporary basis with or without being compensated or on a full-time or part-time basis.. . . .b. For the purpose of The Governmental Tort Claims Act, the following are employees of this state, regardless of the place in this state where duties as employees are performed:. . . .(4) physicians who practice medicine or act in an administrative capacity as an employee of an agency of the State of Oklahoma[.]

4. “Agency” is defined in §152(2) as “any board, commission, com-mittee, department or other instrumentality or entity designated to act in behalf of the state or a political subdivision[.]” Price concluded the physicians were not employees of an agency under subsection (b)(4) because the hospital was not “designated to act in behalf of a political subdivision.” Price, 2006 OK CIV APP 129, ¶8, 148 P.3d at 891. In other words, because the hospital was a political subdivision itself, it could not also be an agency of a political subdivision.

2016 OK CIV APP 41

JAMES RAY BLAKLEY, Plaintiff/Appellant, vs. M&N DEALERSHIPS, L.L.C., d/b/a

EDMOND HYUNDAI; SEAN A. MILLER; and BRYCE RHOADS, Defendants/

Appellees.

Case No.: 114,060. December 4, 2015

APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY, OKLAHOMA

HONORABLE BRYAN C. DIXON, JUDGE

AFFIRMED

Robert C. Smith, Jr., Monnet, Hayes, Bullis, Thompson & Edwards, Oklahoma City, Okla-homa, for Appellant,

Daniel C. Hayes, R. Todd Goolsby, Goolsby, Proctor, Heefner & Gibbs, P.C., Oklahoma City, Oklahoma, for Appellees M&N Dealerships, L.L.C. and Bryce Rhoads,

Aaron D. Johnson, Jagers & Johnson, Attorneys at Law, P.L.L.C., Oklahoma City, Oklahoma, for Appellee Sean A. Miller.


¶1 Plaintiff/Appellant James Ray Blakley (Plaintiff) seeks review of the trial court’s order granting the motion for summary judgment of Defendant/Appellee Sean A. Miller (Miller) and denying Plaintiff’s motion to reconsider its pre-vious order granting the motion for summary judgment of Defendants/Appellees M&N Deal-erships, L.L.C., d/b/a Edmond Hyundai (Ed-mond Hyundai) and Bryce Rhoads (Rhoads) in Plaintiff’s action seeking damages for the Defendants’ alleged negligence in issuing a temporary license tag without obtaining proof of liability insurance from its buyer. In this pro-ceeding, Plaintiff seeks to impose upon the commercial seller of a motor vehicle a duty to obtain proof of liability insurance from its buyer before issuing a temporary license tag.

¶2 Edmond Hyundai is an automobile dealer-ship. Miller worked for Edmond Hyundai as a salesman. Rhoads worked for Edmond Hyundai in its finance department.


¶3 On May 21, 2009, Edmond Hyundai, by its salesman, Miller, sold a vehicle to Stevie Dawn Myers and Eddie Gregory, a family friend of Myers who co-signed the purchase money note. At the time of the sale according to Plaintiff, Miller and Rhoads represented that the payments on the vehicle included payment for “full coverage” insurance on the vehicle. Upon consumation of the sale, Edmond Hyundai placed a temporary license tag on the vehicle.

¶4 On June 28, 2009, while driving the vehi-cle purchased from Edmond Hyundai, Stevie Dawn Myers collided with the vehicle operated by Plaintiff. Plaintiff alleged that Myers was negligent and her negligence caused him sub-stantial injury to his person and property. Plain-tiff then commenced an action against Myers to recover damages.

¶5 By letter dated September 8, 2009, the insurer denied issuance of a policy of liability insurance covering Myers’ vehicle. Plaintiff then commenced an action against Defendants, but proceedings in that action were stayed and the action closed by administrative order on June 21, 2011 after the trial court granted Edmond Hyundai’s motion to compel arbitra-tion. By journal entry filed on August 12, 2011, Plaintiff obtained a judgment against Myers for damages in the sum of $958,801.21.

¶6 On September 2, 2011, Plaintiff com-menced another action against Defendants, but that action was dismissed without prejudice upon Plaintiff’s failure to timely have sum-mons issued. On April 17, 2012, Plaintiff filed the instant action. Plaintiff alleged that Defen-dants placed a temporary license tag on the vehicle sold to Myers knowing the insurance on the vehicle did not include liability insur-ance coverage, that Defendants acted negli-gently or intentionally in issuing a temporary tag knowing its buyer did not have liability insurance, and that Defendants were accord-ingly liable to him for the damages he sus-tained at the hands of the uninsured buyer of the vehicle, Myers.

¶7 Defendants Edmond Hyundai and Rhoads filed a motion for summary judgment. To its motion, they attached evidentiary materials demonstrating the facts we have recounted. Included in the materals were portions of the deposition testimony of the co-signor, Gregory, in which he averred that a salesman, a sales manager named “David” and a loan officer told him the cost of “full coverage” insurance

was included in the car payment, but that he did not ask what insurance was included in “full coverage,” and he admitted that the pur-chase agreement contained no provision for insurance coverage of any kind. He also admit-ted he did not speak to Rhoads until after the automobile accident. Also included in the attachments was a copy of the insurance policy declarations page, provided to Myers and Gregory, reflecting collision coverage only, but not liability.

¶8 Defendants argued that §7-601(A) of title 47, O.S., imposed upon “every owner of a motor vehicle” the non-delegable duty to maintain liability insurance coverage, and that, as the sellers of the vehicle to Myers and Greg-ory, the law imposed no duty on them to obtain liability insurance coverage for the vehicle. Pol-lard v. Chrysler Credit Corp., 1991 OK CIV APP 107, 819 P.2d 719. Further, said Defendants, Plaintiff was not a party to any agreement to obtain insurance, nor an insured, nor a third-party beneficiary of any insurance, and there-fore had no standing to complain of any failure of the seller to obtain insurance. See, Colony Ins. Co. v. Burke, 698 F.3d 1222 (10th Cir. (Okl.) 2012); Swickey v. Silvey Companies, 1999 OK CIV APP 48, 979 P.2d 266. Defendants additionally asserted Plaintiff’s claims accrued on June 28, 2009, the date of the accident, and this action, commenced September 2, 2011, was not timely brought within two years, and was therefore barred by the two-year statute of limitations, 12 O.S. §95(A)(3). Defendants also argued that the evidentiary materials did not demonstrate Rhoads’ involvement in the sale or any repre-sentations by him concerning the extent of insurance coverage.

¶9 Plaintiff objected. Plaintiff agreed that Ok-lahoma law required every owner of a motor vehicle registered in this state to maintain lia-bility insurance coverage on the vehicle, and that, in order to register and obtain a license tag for a vehicle in this state, the owner must furnish to a motor license agent proof of liabil-ity insurance coverage on the vehicle. 47 O.S. 2011 §7-601(A);1 47 O.S. 2011 §1112(3).2 On this basis, however, and as a matter of first impres-sion, Plaintiff thus argued that, to the extent an automobile dealer is authorized to issue a tem-porary license tag prior to registration of a vehicle with the state, the dealership is charged with the same legal duty as a motor license agent to verify the existence of a valid policy of liability insurance prior to issuance of the tem-


porary license tag, and for the breach of that legal duty in the present case, Edmond Hyun-dai was liable to him for the damages caused by the uninsured buyer, Myers. See, Lyngarkos v. Com. Dept, of Transp., 426 A.2d 1195 (Pa. Com-wlth. 1981). Plaintiff asserted that a cause of action against an automobile dealer for the failure to require a buyer of a vehicle to pro-duce proof of liability insurance should be recognized, and that recognition of such a cause of action was entirely consistent with the public policy underlying mandatory liability insurance coverage, i.e., to protect “the public from the financial hardship which may result from the use of automobiles by financially irre-sponsible persons.” Hartline v. Hartline, 2001 OK 15, ¶16, 39 P.3d 765, 771. And see, Restate-ment (Second) of Torts §874A (1979).3

¶10 Plaintiff further asserted his cause of action did not accrue until he received from the insurer a letter denying liability insurance cov-erage on September 8, 2009, that he timely commenced the instant action September 2, 2011, that the action was dismissed without prejudice December 2, 2011, that he refiled the action April 17, 2012, within one year of dis-missal otherwise on the merits as permitted by 12 O.S. §100, and the statute of limitations did not bar his claims. Plaintiff also presented evi-dentiary materials argued to demonstrate some factual controversy concerning the extent of Rhoads’ participation in the sale.

¶11 By journal entry dated October 17, 2014, and filed February 24, 2015, the trial court granted the motion for summary judgment of Edmond Hyundai and Rhoads, holding “there is no Oklahoma authority establishing . . . a duty upon the seller of a vehicle to confirm the buyer has compulsory liability insurance for the vehicle the buyer is buying.”

¶12 On April 27, 2015, Defendant Miller filed a motion for summary judgment. To his motion, he also attached evidentiary materials showing the facts we have recounted. Included in his attachments were portions of his deposition testimony, in which he averred that, at the time of the sale to Myers and Gregory, he was not authorized to determine whether a person was a qualified buyer or to question the sales man-ager and finance manager concerning whether buyer had insurance, that he did not know, and had no reason to know, whether Myers possessed liability insurance coverage on the vehicle she bought, and that, after consumma-tion of the sale in the finance office, his sole

involvement was to attach the temporary tag to the vehicle.

¶13 As did Edmond Hyundai and Rhoads, Miller likewise argued that the law imposed no legal duty on Edmond Hyundai to obtain proof of liability insurance coverage from the buyer of a purchased vehicle. Miller further argued that, because he had no authority to question the buyer, the sales manager or the finance manag-er concerning liability insurance coverage on the purchased vehicle, the law imposed no duty on him, a mere salesman, to verify a buyer’s posses-sion of liability insurance coverage.

¶14 On May 15, 2015, Plaintiff filed a response and objection to Miller’s motion for summary judgment, and therein, requested the trial court’s reconsideration of its previous ruling granting the motion for summary judgment of Edmond Hyundai and Rhoads. Plaintiff again argued the trial court should recognize a cause of action against an automobile dealer for its failure to obtain proof of liability insurance from a buyer prior to issuing a temporary tag.

¶15 Miller filed a reply. Miller argued that, as an employee of Edmond Hyundai, the law imposed on him no duty to Plaintiff, a stranger to the transaction for the sale and purchase of the vehicle, and that Plaintiff’s claim of negli-gence against him accordingly failed.

¶16 Upon consideration of the parties’ sub-missions and arguments on Miller’s motion for summary judgment, and on reconsideration of its previous order granting the motion for sum-mary judgment of Edmond Hyundai and Rhoads, the trial court again held the law imposed no duty on any of the Defendants to obtain proof of compulsory liability insurance. By journal entry filed May 27, 2015, the trial court granted Miller’s motion for summary judgment and denied Plaintiff’s motion to reconsider. Plaintiff now seeks review in this Court, and the matter stands submitted on the trial court record.4

¶17 “Summary judgment is appropriate only where there are no material facts in dispute and the moving party is entitled to judgment as a matter of law.” Wathor v. Mutual Assur. Adm’rs, Inc., 2004 OK 2, ¶4, 87 P.3d 559, 561. (Citation omitted.) “As this decision involves purely legal determinations, our standard of review of a trial court’s grant of summary judgment is de novo[, and w]e review all infer-ences and conclusions to be drawn from under-lying facts contained in evidentiary materials


in a light most favorable to the party opposing the motion.” Id. (Emphasis original.) “Summa-ry judgment will be affirmed only if the appel-late court determines that there is no dispute as to any material fact and that the moving party is entitled to judgment as a matter of law.” Low-ery v. Echostar Satellite Corp., 2007 OK 38, ¶11, 160 P.3d 959, 963. “Summary judgment will be reversed if the appellate court determines that reasonable men might reach different conclu-sions from the undisputed material facts.” Id.

¶18 “Absent some pure error of law, the trial court’s ruling on a motion to reconsider will not be disturbed unless affected by an abuse of discretion.” Waldrop v. Hennessey Utilities Au-thority, 2014 OK CIV APP 106, ¶7, 348 P.3d 213, 215. (Citation omitted.) “Where, as here, the assessment of the trial court’s exercise of dis-cretion in denying a motion to reconsider depends on the propriety of the underlying grant of summary judgment, the abuse-of-dis-cretion question is settled by our de novo review of the summary adjudication’s correctness.” Id.

¶19 In the present case, and in his objection to the motion for summary judgment of Edmond Hyundai and Rhoads, Plaintiff spe-cifically characterized his claim as based, not for breach of contract to obtain insurance, but rather on the alleged negligence of Defendants in failing to require Myers to produce proof of compulsory liability insurance coverage before they issued and attached the temporary license tag to the vehicle she bought. In this respect:

The threshold question in any action for negligence is the existence of a duty. The existence of a legal duty is a question of law for the court. Where the defendant did not owe a duty of care to the plaintiff, there can be no liability for negligence as a mat-ter of law.

Trinity Baptist Church v. Brotherhood Mut. Ins. Services, L.L.C., 2014 OK 106, ¶21, 341 P.3d 75, 82. (Citations omitted.) “The most important consideration in determining the existence of a duty of care is foreseeability of harm to the plaintiff,” and “[g]enerally, a defendant owes a duty of care to the plaintiff who is foreseeably endangered by defendant’s conduct with respect to all risks that make the conduct unreasonably dangerous,” but the “[f]oresee-able risk of harm that will lead the law to say a particular plaintiff is entitled to protection will not generally be extended beyond reason and good sense.” Lowery v. Echostar Satellite Corp.,

2007 OK 38, ¶14, 160 P.3d 959, 964-965. (Cita-tions omitted.) The question in this case is whether, as a matter of statute or the common law, Edmond Hyundai owed a duty to the public in general, and Plaintiff in particular, i.e., those who might foreseeably be injured by its buyer’s failure to maintain compulsory lia-bility insurance in the event of an accident, to require the buyer of a vehicle to produce proof of the compulsory liability insurance coverage before Edmond Hyundai attached a temporary license tag to the purchased vehicle.

¶20 In support of this proposition, Plaintiff cited Lyngarkos v. Com. Dept. of Transp., 426 A.2d 1195 (Pa. Comwlth. 1981), where the Pennsylvania state court recognized the impo-sition of such a duty on the commercial seller of motor vehicles. 426 A.2d at 1198.5 In so hold-ing, however, the Court in Lyngarkos recog-nized specific legislation and regulations enacted in Pennsylvania which “impose upon the issuing automobile dealer the duty to inspect all documents necessary for the proper registration of a motor vehicle,” and “thus cre-ate[] a statutory duty on the part of the dealer to ascertain that the applicant for temporary registration cards and plates has the required No-fault insurance.” Id.6 Unlike Pennsylvania, however, Oklahoma has not enacted any legis-lation or regulations imposing upon the dealer of automobiles such a statutory duty “to ascer-tain that the applicant for temporary registra-tion cards and plates has the required No-fault insurance.”

¶21 Oklahoma law requires a dealer of new and used vehicles to afix a temporary license tag to a vehicle upon its sale. 47 O.S. §§1137.1(E)7 (used vehicles), 1137.38 (new vehicles). And, Oklahoma law mandates that “[e]very owner of a vehicle possessing a certificate of title shall, before using the same in this state, make an application for the registration of such vehicle with a motor license agent.” 47 O.S. §1112. (Emphasis added.) In applying for registration:

Every owner, when making application for registration, shall furnish the following information:

1. A full description of the vehicle includ-ing the manufacturer’s serial or other iden-tification number, any security interest upon the vehicle, an odometer reading of the vehicle when applicable, and the insur-ance security verification to the vehicle;


2. The correct name and address, the name of the city, county and state in which the person in whose name the vehicle is to be registered resides, the driver license number of the owner if the owner has a driver license or the Federal Employers Identification Number of the owner if such owner is not an individual, and such other information as may be prescribed by the Commission; and

3. a. The name of the carrier of the own-er’s insurance policy for such vehicle,

b. The policy number of the owner’s policy for such vehicle, if available, or the name of the agent or office where the exis-tence of security may be verified, if other than the carrier, [and]

c. The effective dates of the owner’s policy for such vehicle, . . . .

Id. (Emphasis added.)

¶22 In this respect, we agree with the Court of Civil Appeals’ holding in Pollard that §7-601 imposes “a non-delegable duty on the ‘owner’ or ‘operator’ of a registered and nonexempt vehicle to maintain liability insurance coverage on that vehicle.” 1991 OK CIV APP 107, ¶6, 819 P.2d at 721. As we read the plain language of §1112, Oklahoma law requires the owner of a motor vehicle to produce proof of compulsory lia-bility insurance to a motor license agent when applying for registration of the vehicle in this state. Under §1112, the production of proof of compulsory liability insurance is a condition to the owner’s application for registration, and the motor license agent is responsible for assuring the application for registration contains a prop-er description of the vehicle, the correct name and address of the owner/applicant for regis-tration, as well as “[t]he name of the carrier of the owner’s insurance policy for such vehicle, [t]he policy number of the owner’s policy for such vehicle, if available, . . . [and] [t]he effec-tive dates of the owner’s policy processing the application,” and, under 47 O.S. §1113(A), a completed application for registration and payment of the statutory fees is required before the owner is issued a certificate of registration and license tag by the Oklahoma Tax Commis-sion. We hold Oklahoma law imposes no statutory duty on the dealer of automobiles to ascertain that the buyer of a motor vehicle possesses the compulsory liability insurance.

¶23 Given this statutory regime requiring production of proof of compulsory liability insurance to a motor license agent as a condition to the registration of a motor vehicle for use in this state, we cannot say a dealer of automo-biles should be charged with a common law duty to require proof of compulsory liability insurance from a buyer before attaching a tem-porary tag to the purchased vehicle. The own-er’s production of proof of compulsory liability insurance to a motor license agent is part of the statutory vehicle registration process required of the owner, but a dealer of automobiles exercises no responsibility for registration of a vehicle sold to its buyer. Sections 1137.1 and 1137.3 of title 47, O.S., require an automobile dealer to afix a temporary tag to a new or used vehicle “when a transaction is completed for the sale of said vehicle,” and those sections do not grant an automobile dealer any authority to refuse to attach such a temporary tag on the basis of whether the buyer has or has not obtained compulsory liability coverage on the purchased vehicle. Under these circumstances, and in our opinion, the imposition of a common law duty on the dealer of automobiles to require the buyer’s production of proof of compulsory liability insurance before attaching a tempo-rary license tag constitutes an extension of the protection of the Oklahoma compulsory liabil-ity insurance law beyond reason and common sense. Lowery, 2007 OK 38, ¶14, 160 P.3d at 965.

¶24 We consequently hold the trial court did not err as a matter of law or fact in granting the motions for summary judgment of Defendants, and did not abuse its discretion in denying Plaintiff’s motion to reconsider. The order of the trial court is AFFIRMED.

MITCHELL, P.J., and HETHERINGTON, C.J., concur.


1. “Every owner of a motor vehicle registered in this state, other than a licensed used motor vehicle dealer, shall, at all times, maintain in force with respect to such vehicle security for the payment of loss resulting from the liability imposed by law for bodily injury, death and property damage sustained by any person arising out of the owner-ship, maintenance, operation or use of the vehicle. . . .”

2. “Every owner of a vehicle possessing a certificate of title shall, before using the same in this state, make an application for the registra-tion of such vehicle with a motor license agent. The application shall contain such information as shall be required by the Oklahoma Tax Commission. Every owner, when making application for registration, shall furnish the following information: . . . 3. a. The name of the car-rier of the owner’s insurance policy for such vehicle, b. The policy number of the owner’s policy for such vehicle, if available, or the name of the agent or office where the existence of security may be verified, if other than the carrier, [and] c. The effective dates of the owner’s policy for such vehicle, . . .”

3. “When a legislative provision protects a class of persons by proscribing or requiring certain conduct but does not provide a civil


remedy for the violation, the court may, if it determines that the rem-edy is appropriate in furtherance of the purpose of the legislation and needed to assure the effectiveness of the provision, accord to an injured member of the class a right of action, using a suitable existing tort action or a new cause of action analogous to an existing tort action.”

4. See, Rule 13(h), Rules for District Courts, 12 O.S. 2011, Ch. 2, App.; Okla.Sup.Ct.R. 1.36, 12 O.S. 2011, Ch. 15, App. 1.

5. “[A]n automobile dealer who issues a temporary registration card and plate to a purchaser without first securing proof of No-fault insurance is answerable in trespass to one injured by the dealer’s neglect. . . .”

6. “[A]n application for registration of a motor vehicle [must] be accompanied by proof of insurance. Regulations promulgated by the Department of Transportation under the Vehicle Code permit automo-bile dealers, as agents for the Department, to issue temporary registra-tion cards and plates. The same regulations impose upon the issuing automobile dealer the duty to inspect all documents necessary for the proper registration of a motor vehicle. There is thus created a statutory duty on the part of the dealer to ascertain that the applicant for tempo-rary registration cards and plates has the required No-fault insurance. This duty is meant to protect all motorists by insuring that they will have recourse to the comprehensive, expeditious and equitable No-fault insurance coverage required of all motorists. [The dealer] owed Lyngarkos a duty to make certain that [the buyer] possessed the insur-ance prior to issuing [the buyer] a temporary registration card and plate.” (Citations omitted.)

7. “. . . It shall be the responsibility of the selling dealer to place a temporary license plate, in size similar to the permanent Oklahoma license plate but of a weatherproof plastic-impregnated substance approved by the Used Motor Vehicle and Parts Commission, upon a used motor vehicle, travel trailer or commercial trailer when a transac-tion is completed for the sale of said vehicle. . . .”

8. “. . . It shall be the responsibility of the selling dealer to place a temporary license plate, in size similar to the permanent Oklahoma license plate but of a weatherproof plastic-impregnated substance approved by the Oklahoma Motor Vehicle Commission, upon a new motor vehicle, travel trailer or commercial trailer when a transaction is completed for the sale of said vehicle or trailer. . . .”

Appellate Practice

Upcoming speakers: 11:30 AM

July 18th Gina Hendryx, General CounselEthics in appeals. (1/1)

August 15th Michael Richie, ClerkHow to designate a civil appellaterecord. (1/0)

September 19th Ricki Waltersheid, OIDSProcedural anomalies in CriminalAppeals. (1/0)

Our monthly meetings are held in both OBA’sRoom 131, and in the Room 2205 of the MainClassroom Building, OSU/Tulsa, by simulcast.

Lunch provided to Section Members.Non-members are charged $10 for lunch.

Mark Koss, chairRSVP [email protected]

NOTICE OF HEARING ON THE PETITION FOR REINSTATEMENT OF MICHAEL C. TAYLOR, SCBD #6405

TO MEMBERSHIP IN THE OKLAHOMA BAR ASSOCIATION

Notice is hereby given pursuant to Rule 11.3(b), Rules Governing Dis-ciplinary Proceedings, 5 O.S., Ch. 1, App. 1-A, that a hearing will be held to determine if Michael C. Taylor should be reinstated to active membership in the Oklahoma Bar Association.

Any person desiring to be heard in opposition to or in support of the petition may appear before the Professional Responsibility Tribunal at the Oklahoma Bar Center at 1901 North Lincoln Boulevard, Okla-homa City, Oklahoma, at 9:30 a.m. on Wednesday, August 24, 2016. Any person wishing to appear should contact Gina Hendryx, General Counsel, Oklahoma Bar Association, P.O. Box 53036, Okla-homa City, Oklahoma 73152, telephone (405) 416-7007.

PROFESSIONAL RESPONSIBILITY TRIBUNAL


COURT Of CRIMINAL APPEALS Wednesday, June 15, 2016

RE-2015-179 — On March 20, 2008, in the District Court of Oklahoma County, Appellant, Dashawn Terrell Ransome, was sentenced to ten (10) years imprisonment for Possession of a Controlled Dangerous Substance (Cocaine Base) in Case No. CF-2006-4305; and in Case No. CF-2008-486, was sentenced to ten years for Possession of a Firearm while on Depart-ment of Corrections Supervision and to ten (10) years for Possession of a Controlled Dan-gerous Substance (Cocaine). In accordance with a plea agreement, the Honorable D. Fred Doak, Special Judge, ordered these sentences to be served concurrently with one another and suspended their execution for all but the first six (6) months, conditioned on written rules of probation. On August 12, 2013, in Case No. CF-2013-1218, the Honorable Susan K. Johnson, Special Judge, sentenced Appellant to twelve (12) years imprisonment for Possession of a Controlled Dangerous Substance (Cocaine Base), After Former Conviction of Two or More Felonies, and pursuant to a plea agreement, ordered that sentence to be served concurrent-ly with the sentences in CF-2006-4305 and CF-2008-486, with all but the first ninety (90) days suspended under written rules of proba-tion. On February 17, 2015, the Honorable Timothy R. Henderson, District Judge, found Appellant violated his probation and revoked the suspension orders in full. Appellant appeals the final orders of revocation. AFFIRMED. Opinion by: Johnson, J.; Smith, P.J., concurs; Lumpkin, V.P.J., concurs in results; Lewis, J., concurs; Hudson, J., concurs.

C-2015-794 — Anthony L. Brown, Petitioner, entered a negotiated plea of guilty to the crimes of Possession of Controlled Dangerous Substance with Intent to Distribute (Count 1), Possession of an Offensive Weapon During the Commission of a Felony (Count 3), and Posses-sion of Paraphernalia (Count 4) in Case No. CF-2012-2349 in the District Court of Oklaho-ma County. The Honorable Susan Johnson ac-cepted Brown’s plea and, in accordance with the plea agreement, deferred sentencing for five years on Counts 1 and 3, and for one year

on Count 4. The State filed an Application to Accelerate Deferred Sentence and following a hearing, The Honorable Ray C. Elliott acceler-ated Brown’s sentencing and sentenced him to twenty years imprisonment on Count 1, ten years imprisonment on Count 3, and one year in the county jail on Count 4, with Counts 1 and 3 running consecutively and Count 4 run-ning concurrently with Count 1. Brown filed a Motion to Withdraw Plea of Guilty and Judge Elliott denied the motion. Brown appeals the denial of his motion to withdraw plea. The Petition for Writ of Certiorari is DENIED. The Judgment and Sentence of the District Court is AFFIRMED. Opinion by: Johnson, J.; Smith, P.J., concurs; Lumpkin, V.P.J., concurs in results; Lewis, J., concurs; Hudson, J., concurs.

S-2015-672 — State of Oklahoma v. Jerry Scott Niederbuhl; PR-2015-726 — State of Oklahoma v. Honorable Terry McBride; Jeremy Scott Nie-derbuhl, the Appellee in the above styled state appeal, was originally charged on December 13, 2013, in the District Court of Mayes County with Attempted First Degree Burglary Case No. CF-2013-472. A Second Amended Felony Information was filed on July 15, 2015. On July 17, 2015, the trial court granted the defendant’s Motion to Dismiss on grounds that the defen-dant’s rights to a speedy trial and due process were violated and that such violations were the result of bad faith on the part of the State. On July 24, 2015, the State filed with the District Court a Motion to Vacate/Reconsider Court’s Ruling. That same day, the State filed with the clerk of this Court a Notice of Intent to Appeal, Case No. S-2015-672 (the Notice of Intent to Appeal having been filed with the District Court of Mayes County on July 22, 2015). After receiving a response from the defense on the motion to vacate/reconsider ruling, the trial court held a hearing on August 14, 2015. The trial court determined that it did not have jurisdiction to rule on the motion to vacate/reconsider in light of the notice of intent to appeal filed with this Court. On August 17, 2015, the State filed with this Court a Petition for Writ of Prohibition/Mandamus against the trial judge in the Niederbuhl case, Case No. PR-2015-726. We address both the State appeal

Disposition of Cases Other Than by Published Opinion


and the petition for a writ of prohibition/man-damus. The State’s appeal is hereby DIS-MISSED and the case is REMANDED to the District Court for further proceedings not inconsistent with this opinion. The State’s Peti-tion for Writ of Prohibition/Mandamus is DENIED. Opinion by: Lumpkin, V.P.J.; Smith, P.J., Concur; Johnson, J., Concur; Lewis, J., Con-cur; Hudson, J., Concur.

RE-2015-129 — On March 15, 2013, Appel-lant Clyde C. Gray, represented by counsel, entered a plea of no contest to Count 1, Assault and Battery with a Dangerous Weapon, Count 2, Malicious Injury to Property (misdemeanor), and Count 3, Assault on a Police Officer in Oklahoma County Case No. CF-2012-4668. Gray was sentenced to twenty (20) years, all suspended for Count 1, one year for Count 2 and 6 months for Count 3, subject to terms and conditions of probation. On July 9, 2014, the State filed an Application to Revoke Gray’s suspended sentence alleging he committed the new offenses of Count 1, First Degree Burglary, Count 2, Domestic Abuse Assault and Battery, and Count 3, Violation of a Protective Order as alleged in Oklahoma County Case No. CF-2014-4151 and other probation violations. On Febru-ary 6, 2015, the District Court of Oklahoma County, the Honorable Cindy Truong, District Judge, revoked 15 years of Gray’s suspended sentence. The revocation of Gray’s suspended sentence is AFFIRMED. Opinion by: Hudson; J.; Smith, P.J.: Concurs; Lumpkin, V.P.J.; Con-curs; Johnson, J.: Concurs; Lewis, J.: Concurs.

f-2015-397 — Andrew Phillip Smith, Appel-lant, was convicted of child abuse by injury in violation of 21 O.S.2011, § 843.5(A), in Caddo County district court case number CF-2014-19, before the Honorable Richard G. Van Dyck, District Judge. The jury set punishment at twenty-one (21) years imprisonment. The trial court sentenced accordingly. From this Judg-ment and Sentence, Smith has perfected an appeal to this Court. AFFIRMED. Opinion by: Lewis, J.; Clancy Smith, P.J., Concurs in Results; Lumpkin, V.P.J., Concurs; Johnson, J., Concurs; Hudson, J., Concurs.

RE-2014-1008 — On December 18, 2007, Ap-pellant Timothy Richard Hazel, represented by counsel, entered a guilty plea to two counts of Sexually Abusing a Minor Child in Tulsa Coun-ty Case No. CF-2007-3511. Hazel was sen-tenced to fifteen years, with all but the first five years suspended, subject to terms and condi-tions of probation. On August 18, 2014, the

State filed an Application to Revoke Hazel’s suspended sentences alleging he committed the new offense of Larceny from a Retailer as alleged in Oklahoma County Case No. CF-2014-4429. On November 13, 2014, at the conclusion of the hearing on the State’s revocation appli-cation, the Honorable Thomas C. Gillert, Dis-trict Judge, revoked Hazel’s suspended sen-tences in full. From this Judgment and Sen-tence, Appellant has perfected his appeal. AFFIRMED. Opinion by: Lewis, J.; Clancy Smith, P.J., Concurs; Lumpkin, V.P.J., Concurs; Johnson, J., Concurs; Hudson, J., Concurs.

Thursday, June 16, 2016

f-2015-461 — On January 23, 2014, in the District Court of Murray County, Case No. CF-2013-123, Johnny Allen Ross, Appellant, while represented by counsel, entered pleas of guilty to Count I: Possession of Controlled Sub-stance (Methamphetamine) in violation of 63 O.S.Supp.2012, § 2-402(B)(1); and Count II: Possession of Controlled Substance (Marijua-na) in violation of 63 O.S.Supp.2012, § 2-402(B)(3), both after previous conviction under the Uniform Controlled Dangerous Substances Act. Pursuant to a plea agreement, the Honor-able Wallace Coppedge, District Judge, delayed the imposition of judgment and sentence pend-ing Appellant’s completion of the Drug Court Program. Thereafter, the State filed a motion to terminate Appellant from that program. On April 22, 2015, the Honorable Aaron Duck, As-sociate District Judge, sustained the State’s motion. On May 1, 2015, in accordance with the terms of Appellant’s admission to Drug Court, Judge Coppedge entered judgments of guilt, sentenced Appellant to ten (10) years impris-onment on each count, and ordered the sen-tences to be served concurrently. Appellant appeals the final order terminating him from Drug Court. AFFIRMED. Opinion by: Lump-kin, V.P.J.; Smith, P.J., Concur; Johnson, J., Con-cur; Lewis, J., Concur; Hudson, J., Concur.

J-2016-182 — C.H., Appellant, appealed to this Court from an order entered by the Honor-able William Hiddle, Special Judge, adjudicat-ing her delinquent in Case No. JDL-2015-435 in the District Court of Tulsa County. AFFIRMED. Opinion by: Smith, P.J.; Lumpkin, V.P.J., Con-cur; Johnson, J., Concur; Lewis, J., Concur; Hudson, J., Concur.

f-2015-188 — George Emile July, Appellant, was tried by jury for the crime of First Degree Murder (Count 1), Kidnapping (Count 2, 3, 4),


Assault and Battery with a Deadly Weapon (Count 5 and 6), Possession of a Firearm After a Former Conviction of a Felony (Count 7), and Possession of a Controlled Dangerous Substance (Count 8), all counts After Former Conviction of Two Felonies in Case No. CF-2013-5818 in the District Court of Tulsa County. The jury re-turned a verdict of guilty and recommended as punishment life imprisonment without the possibility of parole in Count 1 and life in prison for each remaining counts and fines of $10,000.00 for Counts 1-7 and of $5,000.00 for Count 8. The trial court sentenced accordingly. From this judgment and sentence George Emile July has perfected his appeal. The Judgment and Sentence is AFFIRMED. The Motion to Re-mand for Evidentiary Hearing is DENIED. Opinion by: Lumpkin, V.P.J.; Smith, P.J., Con-cur; Johnson, J., Concur; Lewis, J., Concur; Hudson, J., Concur.

friday, June 17, 2016

RE-2015-746 — On December 28, 2010, Appellant Patrick Michael Bee entered guilty pleas to Count 1, First Degree Burglary and Count 2, Assault with a Dangerous Weapon in Garfield County Case No. CF-2010-424. Bee was sentenced to ten (10) years for each count, all suspended, subject to terms and conditions of probation. The sentences were ordered to be served concurrently. On February 13, 2015, the State filed its third Application to Revoke Bee’s suspended sentences alleging numerous pro-bation violations. On August 24, 2015, Bee’s suspended sentences were revoked in full. The revocation of Bee’s suspended sentences is AFFIRMED. Opinion by: Hudson, J.; Smith, P.J.: Concurs; Lumpkin, V.P.J.: Concurs; John-son, J.: Concurs; Lewis, J.: Concurs.

f-2015-379 — Donald Gene Widener, III, Ap-pellant, was tried by jury for the crimes of First Degree Burglary and Conspiracy, both After Former Conviction of Two or More Felonies, and Eluding a Police Officer in Case No. CF-2014-494 in the District Court of Kay Coun-ty. The jury returned a verdict of guilty and assessed punishment at twenty-one years imprisonment on the burglary conviction, four years imprisonment on the conspiracy convic-tion and a $2,000.00 fine on the eluding convic-tion. The trial court sentenced accordingly and ordered the sentences to be served concurrent-ly. From this judgment and sentence Donald Gene Widener, III has perfected his appeal. The Judgment and Sentence of the District Court is AFFIRMED. Opinion by: Johnson, J.; Smith,

P.J., concurs; Lumpkin, V.P.J., concurs; Lewis, J., concurs; Hudson, J., concurs.

Monday, June 20, 2016

RE-2015-746 — In the District Court of Le-Flore County, Case No. CF-2002-435, Appel-lant, Wesley Drew Stegall, entered a plea of guilty to Possession of Controlled Substance (Methamphetamine), After Former Conviction of a Drug Related Felony. On July 26, 2004, the Honorable Ted A. Knight, Associate District Judge, sentenced Appellant in accordance with a plea agreement to twenty (20) years impris-onment, all suspended under written rules of probation. On February 19, 2008, in Case No. CF-2007-339, Appellant entered a plea of guilty to Possession of a Controlled Dangerous Sub-stance (Oxycodone and Diazepam), After For-mer Conviction of a Drug Related Felony, and pursuant to a plea agreement, Judge Knight sentenced Appellant to fifteen (15) years imprisonment, all suspended under rules of probation. On February 26, 2015, Judge Knight found Appellant had violated his probation and revoked the suspension orders in full. Ap-pellant appeals the final orders of revocation. AFFIRMED. Opinion by: Lewis, J.; Smith, P.J., Concurs; Lumpkin, V.P.J., Concurs; Johnson, J, Concurs; Hudson, J., Concurs.

Wednesday, June 22, 2016

RE-2015-819 — On September 11, 2012, Ap-pellant Devin Dale O’Neal, represented by counsel, entered a guilty plea to a charge of Domestic Abuse Assault and Battery in Jeffer-son County Case No. CF-2012-1. O’Neal was sentenced to four (4) years, all suspended, sub-ject to terms and conditions of probation. On June 21, 2015, the State filed an application to revoke O’Neal’s suspended sentence alleging he committed the new offense of Domestic Abuse Assault and Battery as alleged in Jeffer-son County Case No. CF-2015-33. On August 18, 2015, the District Court of Jefferson County revoked two years of O’Neal’s suspended sen-tence. The two year revocation of O’Neal’s suspended sentence is AFFIRMED. Opinion by: Smith, P.J.; Lumpkin, V.P.J., Concur; John-son, J. Concur; Lewis, J., Concur; Hudson, J., Concur.

RE-2015-809 — On October 28, 2005, Appel-lant Destin Eugene Bitsche, represented by counsel, entered a guilty plea to Threatening an Act of Violence in Caddo County Case No. CF-2005-29. Bitsche was sentenced to ten (10) years, all suspended, subject to terms and con-


ditions of probation. On March 2, 2015, the State filed its fifth Application to Revoke Bitsche’s suspended sentence alleging he com-mitted the new offenses of Resisting an Officer and Attempting to Elude a Police Officer as alleged in Caddo County Case No. CM-2015-41. On August 27, 2015, the District Court of Caddo County revoked four (4) years of Bitsche’s suspended sentence. The revocation of Bitsche’s suspended sentence is AFFIRMED. Opinion by: Lumpkin, V.P. J.; Smith, P.J., Con-cur; Johnson, J., Concur; Lewis, J., Concur; Hudson, J., Concur.


RE-2015-616 — Appellant Bryan Reed Smoot was charged on March 24, 2010, in Oklahoma County District Court Case No. CF-2010-2064 with Financial Exploitation of an Elderly Per-son by a Caretaker. On March 16, 2011, Appel-lant pled guilty. The Honorable Ray C. Elliott, District Judge, sentenced Appellant pursuant to ten years imprisonment with all ten years suspended. On August 10, 2012, the State filed an application to revoke Appellant’s suspended sentence. Following an April 2, 2013, revocation hearing on the State’s application to revoke, Judge Elliott revoked Appellant’s suspended sentence in full. Appellant appeals. The revoca-tion of Appellant’s suspended sentence is AF-FIRMED. Opinion by: Lumpkin, V.P.J.; Smith, P.J.: Concur Results; Johnson, J.: Concur; Lewis, J.: Concur; Hudson, J.: Concur.

COURT Of CIVIL APPEALS (Division No. 1)


113,008 — New York Marine and General Insurance Company, as Subrogee for Kansas Building Industry Worker’s Compensation Fund, Plaintiff/Appellee, vs. George Andrew Morgan, Defendant/Appellant, 300 Club, Inc. and Olli, Inc., Defendants. Appeal from the District Court of Garfield County, Oklahoma. Honorable Paul K. Woodward, Judge. This appeal arises out of a jury verdict in favor of Appellee (NY Marine) as Subrogee for Kansas Building Industry Worker’s Compensation Fund (the Fund). NY Marine brought suit against Appellant (Morgan) seeking to recover, via its subrogation claim under Kansas law, worker’s compensation benefits paid to the employee of its insured, Jesse Atkins (Atkins), who was injured by Morgan. Morgan negligently caused injury to Atkins whose employer had worker’s compensation insurance through the Fund. NY

Marine is the reinsurer for the Fund. NY Ma-rine’s statutory subrogation right for workers compensation benefits paid to Atkins under Kansas law, K.S.A. 44-504(c), cannot be defeat-ed when the third-party tortfeasor (Morgan) settles with the injured worker (Atkins) and without the knowledge or consent of the sub-rogated insurer (NY Marine) when the third-party tortfeasor has knowledge of the subro-gated insurer’s claim. Questions of fact related to when Morgan became aware of Atkins’ workers compensation claim were correctly submitted to the jury and the jury was given appropriate instructions. The employer’s obli-gation to pay workers compensation benefits (and thus its subrogation interest as well as that of its insurer, NY Marine) arose as soon as it was ordered to make such payments pursu-ant to the Preliminary Order Statute, K.S.A. 44-534a, regardless of whether Atkins’ injuries are ultimately determined to be compensable under Kansas workers compensation law. Fur-ther, in the event Atkins’ injuries are ultimately determined not to be compensable, the subro-gated insurer is not limited to seeking reim-bursement from the statutory fund because such limitation would essentially absolve the third-party wrongdoer of liability. Additional-ly, NY Marine is not limited to recovering the $100,000 Morgan and Atkins settled for. The trial court did not err by refusing to continue the trial for Morgan to compel the testimony of an out-of-state witness when the record dem-onstrated Morgan had done little to obtain the witness’s cooperation prior to the discovery deadline. The trial court also did not err by refusing to reduce the damages awarded by the jury by the amount of the alleged joint tort-feasor’s liability when Morgan presented no evidence those parties were jointly liable. Finally, the trial court did not err in refusing to reduce the appeal bond when Morgan pre-sented no appellate argument or facts support-ing this assertion. The judgment of the trial court is AFFIRMED. Opinion by Mitchell, J.; Buettner, V.C.J., P.J., concurs, and Goree, J., con-curs in part, dissents in part with opinion.

113,627 — In Re the Marriage of: Teresa Re-nee Phillips, Petitioner/Appellant, vs. John T. Phillips, Respondent/Appellee. Appeal from the District Court of Oklahoma County, Okla-homa. Honorable Barry L. Hafar, Judge. Peti-tioner Teresa Renee Phillips (Wife) appeals the property division and support alimony award-ed in the decree of dissolution of marriage. We hold the trial court did not abuse its discretion


by using the date the petition for divorce was filed as the valuation date and in calculating the marital value of John T. Phillips’s (Hus-band) cash accounts. We hold the trial court erred by reducing the marital value of phan-tom stock options based on Husband’s specu-lative tax liability. We also hold that the trial court’s classification of Husband’s 401k as separate property was against the clear weight of the evidence. We hold the trial court erred by ordering Husband to pay support alimony until the obligation terminates pursuant to 43 O.S. § 134 when the parties’ antenuptial agree-ment addressed conditions that would termi-nate the payment of support alimony. The decree is AFFIRMED IN PART, REVERSED IN PART and this matter is REMANDED for the trial court to re-calculate the value of the mari-tal estate, make an equitable division of marital property, and modify the decree to order the termination of support alimony pursuant to the terms of the antenuptial agreement. AF-FIRMED IN PART, REVERSED IN PART AND REMANDED. Opinion by Buettner, V.C.J., P.J.; Mitchell, J., and Goree, J., concur.

114,007 — Robert Stone, Plaintiff/Appellant, vs. Chisholm Trail Construction, L.L.C. and Terry Kutcher, Defendants/Appellees. Appeal from the District Court of Kingfisher County, Oklahoma. Honorable Robert E. Davis, Judge. Plaintiff/Appellant Robert Stone appeals from the trial court’s order denying a motion to dis-qualify counsel representing Defendants/Appellees Chisholm Trail Construction, L.L.C. (CTC) and Terry Kutcher. The trial court failed to conduct an evidentiary hearing as required by law. The order is REVERSED and REMAND-ED for an evidentiary hearing. REVERSED AND REMANDED. Opinion by Buettner, V.C.J., P.J.; Mitchell, J., and Goree, J., concur.

114,410 — Royce Dunham, parent and Spe-cial Administrator of the Estate of James Trevor Dunham, deceased, Plaintiff/Appellant, vs. Newman Memorial Hospital, an Oklahoma Corporation; SSM Health Care of Oklahoma, Inc., d/b/a Saint Anthony Hospital, an Okla-homa Corporation; and Mark R. Rogow, M.D., a medical doctor licensed by the State of Okla-homa, Defendants/Appellees. Appeal from the District Court of Ellis County, Oklahoma. Honorable Doug Haught, Judge. Plaintiff/Appellant Royce Dunham, parent and Special Administrator of the Estate of James Trevor Dunham, deceased, appeals from summary judgment granted to Defendants/Appellees

Newman Memorial Hospital (Hospital), SSM Health Care of Oklahoma, d/b/a Saint Antho-ny Hospital (SSM), and Mark Rogow, M.D. (collectively, Defendants). Dunham challenges the trial court’s findings that Hospital was a political subdivision, Rogow was its employee, and SSM was its affiliate, and that Dunham’s claims against them were barred under the Governmental Tort Claims Act (GTCA). The material facts are not disputed. Hospital is a public trust hospital and its status as a political subdivision covered by the GTCA is not affect-ed by its affiliation agreement with SSM. Rogow is Hospital’s employee. Dunham failed to give the notice required by the GTCA, and therefore his claims against Hospital and Rogow were barred. Dunham’s only claim against SSM was that it was vicariously liable for the negligence of Hospital and Rogow. Dunham has no claim against SSM both because his claim against Hospital was barred and because the contract between Hospital and SSM expressly stated SSM did not control Hos-pital. Defendants were entitled to judgment as a matter of law. AFFIRMED. Opinion by Buett-ner, V.C.J., P.J.; Mitchell, J., and Goree, J., concur.

114,487 — Victoria (Fonseca) Norman, Peti-tioner, vs. Multiple Injury Trust Fund and The Workers’ Compensation Court of Existing Claims, Respondents. Proceeding to Review an Order of a Three-Judge Panel of The Workers’ Compensation Court of Existing Claims. Peti-tioner Victoria (Fonseca) Norman (Claimant) appeals from an order of the Workers’ Com-pensation Court of Existing Claims denying her request for permanent total disability ben-efits from Respondent Multiple Injury Trust Fund (the Fund). We hold the panel’s order finding Claimant’s impairment to her hands and right knee were not obvious and apparent and that Claimant is not physically totally dis-abled is neither contrary to law nor against the clear weight of the evidence. SUSTAINED. Opinion by Buettner, V.C.J., P.J.; Mitchell, J., and Hetherington, J. (sitting by designation), concur.

114,532 — In the Matter of: I.W., dob 1/ 04/2014 alleged deprived child, Cody Wilson, Appellant, vs. The State of Oklahoma, Appel-lee. Appeal from the District Court of Creek County, Oklahoma. Honorable Mark A. Ihrig, Judge. Appellant (Father) appeals the trial court’s order adjudicating I.W., his minor child, deprived following a non-jury trial. I.W. was taken into emergency custody by the Appellee


(State) based on allegations that Father sexual-ly assaulted P.F., the younger sister of I.W.’s mother, who was twelve at the time of the alleged assault. State also alleged Father sent inappropriate Facebook messages to a different twelve-year-old girl who lived in the same apartment complex. Relying on a requirement in criminal cases that the State give specific, timely notice of its intent to use evidence of previous criminal convictions, Father argues the trial court erred in allowing P.F. to testify because he had not been charged with assault-ing her, much less convicted of one. See Burks v. State, 1979 OK CR 10, 594 P.2d 771 (overturned on other grounds by Jones v. State, 1989 OK CR 7, 772 P.2d 922). However, nothing in Oklaho-ma law supports application of the Burks test to civil matters. Further, the testimony was not inadmissible character evidence barred by 12 O.S. §2404 because the character of Father was at issue in the deprived adjudication. In our view the evidence presented by both sides to the trial court was evenly weighted. Father denied any assault took place while P.F. claimed it did occur. Given the conflicting testimony, it is the province of the trier of fact (here, the trial court) to determine the credibility of witnesses and the effect and weight to give their testi-mony. The trial court clearly gave more weight to P.F.’s testimony than it did to Father’s. Con-sidering our very limited standard of review and the relatively low burden of proof placed on the State at trial, the order of the trial court is AFFIRMED. Opinion by Mitchell, J.; Buettner, V.C.J., P.J., and Goree, J., concur.


113,761 — Bobbie Needam, Plaintiff/Appel-lee, vs. Perry Cleveland, President, and MTC Investments, Inc., an Oklahoma Corporation, Defendants/Appellants. Appeal from the District Court of Tulsa County, Oklahoma. Honorable Kirsten Pace, Judge. Defendants/Appellants Perry Cleveland, President, and MTC Investment, Inc., an Oklahoma Corpora-tion, (collectively, MTC) appeal from judgment awarding them attorney fees and denying their request for costs. We hold the trial court did not abuse its discretion by awarding MTC at-torney fees in the amount of $850.00. However, the trial court erred by denying MTC’s request for $50.00 in costs. AFFIRMED IN PART, RE-VERSED IN PART AND REMANDED. Opin-ion by Buettner, V.C.J., P.J.; Mitchell, J., and Goree, J., concur.

114,539 — Charles Williams, Plaintiff/Appel-lant, vs. Board of County Commissioners of Mayes County, Defendant/Appellee. Appeal from the District Court of Mayes County, Okla-homa. Honorable Terry H. McBride, Judge. Appellant (Williams) appeals the trial court’s grant of summary judgment in favor of Appel-lee (Board) on Williams’ claim of retaliatory discharge. Williams filed a retaliatory dis-charge claim against the Board when he was not allowed to return to his job as the jail administrator following his recovery from an on-the-job injury. The Board presented undis-puted facts in support of its summary judg-ment motion and argued Williams could not meet the elements of a prima facie case of retal-iatory discharge. Nothing in the record sup-ports a legal inference that Williams’ termina-tion was motivated at all by retaliation for his filing of a workers’ compensation claim. Fur-ther, the record also does not support any assertion by Williams that he was fired during temporary total disability leave due solely to absence from work in violation of 85 O.S. 2011 §341(B). No evidence was presented that Wil-liams’ absence from work played any part in the decision to terminate Williams. The deci-sion of the trial court is AFFIRMED. Opinion by Mitchell, J.; Buettner, V.C.J., P.J., and Goree, J., concur.

114,632 — Richard Spaulding, Plaintiff/Ap-pellant, vs. The Gassaway Law Firm, PLLC, an Oklahoma Professional Limited Liability Com-pany, and Carl and Cheryl Grace, Defendants/Appellees. Appeal from the District Court of Tulsa County, Oklahoma. Honorable Daman H. Cantrell, Trial Judge. Plaintiff, Richard Spaulding, filed an action against Carl and Cheryl Grace (Grandparents) and the Gas-saway Law Firm, PLLC (Firm) based on his claims of malicious prosecution, abuse of pro-cess, and unjust enrichment. The trial court denied his motion for partial summary judg-ment and granted Grandparents’ and Firm’s motions for summary judgment. Plaintiff ap-pealed. Because at least one element is absent from each of Plaintiff’s claims for malicious prosecution, abuse of process, and unjust en-richment, Plaintiff is unable to establish the essential elements of his claims. Therefore, as a matter of law, Defendant is entitled to sum-mary judgment. The trial court did not err in granting Firm’s and Grandparents’ motions for summary judgment. AFFIRMED. Opinion by Goree, J.; Buettner, V.C.J., P.J., and Mitchell, J., concur.


114,667 — Claremore Automall, L.L.C., an Oklahoma Limited Liability Company, d/b/a Jim Glover Chevrolet, Plaintiff/Appellee, vs. Harvest Fields Vending, L.L.C., an Oklahoma Limited Liability Company, Defendant/Appel-lant, vs. Jim Glover, Individually, Third-Party Defendant. Appeal from the District Court of Tulsa County, Oklahoma. Honorable Mary Fitzgerald, Trial Judge. Defendant/Appellant, Harvest Fields Vending, LLC, seeks review of the trial court’s order granting summary judg-ment in favor of Plaintiff/Appellee, Claremore Automall LLC, d/b/a Jim Glover Chevrolet (Dealer). We reverse to the extent the order granted summary judgment on Harvest’s claim under the Oklahoma Consumer Protection Act, 15 O.S. 2011 §§751-763, and remand for further proceedings pursuant to the Act. We otherwise affirm the order because the record does not establish any material issues of fact as to the remaining claims. AFFIRMED IN PART, RE-VERSED IN PART, AND REMANDED. Opin-ion by Goree, J.; Buettner, V.C.J., P.J., and Mitchell, J., concur.


113,008 — In Re the Marriage of Lundry: Heather Lundry, Petitioner/Appellant, vs. John Paul Lundry, Respondent/Appellee. Appeal from the District Court of Pushmataha County, Oklahoma. Honorable Jana Kay Wallace, Judge. Petitioner/Appellant Heather Lundry (Moth-er) appeals from the Decree of Dissolution of Marriage granting joint custody of the children to Mother and Respondent/Appellee John Paul Lundry (Father). Due process necessitates that a parent have the right to cross-examine the guardian ad litem (GAL) once his or her report is proffered to the trial court. The trial court made a decision as to custody without first giving the parties an opportunity to cross-examine the GAL. Therefore, the custody de-termination in the Decree is REVERSED and the matter REMANDED for a hearing to cross-examine the GAL and for the trial court to enter an order as to custody and visitation. REVERSED AND REMANDED. Opinion by Buettner, V.C.J., P.J. Goree, J., concurs; Mitchell, J., specially concurs.

114,369 — In the Matter of: J.M., A.M., and J.M., deprived children, Angela Blancarte, nat-ural mother, Appellant, vs. The State of Okla-homa, Appellee. Appeal from the District Court of Tulsa County, Oklahoma. Honorable Rod-ney Sparkman, Judge. Appellant (Mother) ap-peals the trial court’s September 17, 2015 order

terminating her parental rights to her minor children (children). The children were adjudi-cated deprived as to Mother by order dated February 28, 2013. Appellee (State) filed its Amended Motion to Terminate Parental Rights of Mother February 10, 2014 based on Mother’s failure to correct the conditions which resulted in the deprived adjudication, those conditions being failure to provide a safe and stable home, neglect, and drug abuse. 10A O.S. Supp. 2014 §1-4-904(B)(5). The State also sought termina-tion based on abandonment, id. at §904(B)(2), and for Mother’s failure to contribute to the support of the children for six consecutive months, id. at §904(B)(7). The trial court ulti-mately terminated both Mother’s and Father’s parental rights by written order dated Septem-ber 17, 2015. Mother’s petition in error stated the issue to be raised on appeal was that the State failed to make reasonable efforts to reuni-fy her with her children. However, her brief in chief argues the State failed to prove by clear and convincing evidence that Mother aban-doned her children and failed to correct the conditions which resulted in the deprived adjudication. Mother did not appeal the ruling that her parental rights were terminated due to failure to pay child support for six out of the last twelve months. Our review of the record shows the State did make reasonable efforts at reunification and proved, by clear and con-vincing evidence, all of the grounds upon which the State sought termination. For these reasons, the order of the trial court terminating Mother’s parental rights is AFFIRMED. Opin-ion by Mitchell, J.; Buettner, V.C.J., P.J., and Goree, J., concur.

114,536 — Cottonwood Capital Property Management, L.L.C., and Everest National Insurance Company, Petitioners, vs. Maria Pom-eroy and The Workers’ Compensation Court of Existing Claims, Respondents. Proceeding to Review an Order of a Three-Judge Panel of the Workers’ Compensation Court of Existing Claims. Petitioners, Cottonwood Capital Prop-erty Management, LLC, and Everest National Insurance Company (collectively Employer), seek review of an order of a three-judge panel of the Workers’ Compensation Court of Exist-ing Claims which unanimously affirmed the trial court’s order awarding Respondent, Maria Pomeroy (Claimant) 52 weeks of vocational retraining. Employer contends the order was unsupported by competent evidence and was contrary to law. We hold the second vocational evaluation is competent evidence supporting


the order, and the vocational retraining approved in the order is within the services authorized by statute. SUSTAINED. Opinion by Goree, J.; Buettner, V.C.J., P.J., and Mitchell, J., concur.

114,572 — Harold Barnes, Petitioner, vs. Multiple Injury Trust Fund and The Workers’ Compensation Court of Existing Claims, Respondents. Proceeding to Review an Order of a Three-Judge Panel of The Workers’ Com-pensation Court of Existing Claims. Petitioner Harold Barnes seeks review of an order of a three-judge panel of the Workers’ Compensa-tion Court of Existing Claims which reversed the trial court’s finding that Barnes was a physically impaired person and was PTD due to the combination of his previous impairment with his most recent compensable injury. Barnes did not have a previous adjudication of disability or an obvious and apparent loss of use of a member. Barnes’s pre-existing disability was adjudicated as a Crumby finding in his only workers’ compensation proceeding. The panel correctly denied Barnes’s claim for benefits from Respondent Multiple Injury Trust Fund and we sustain. SUSTAINED. Opinion by Buettner, V.C.J., P.J. Mitchell, J., concurs; Bell, J. (sitting by designation), concurs in result.

(Division No. 2) friday, June 24, 2016

112,871 — Weaver Family Properties, LLC, and James T. Weaver and Darla Jean Weaver, Trustees of the James T. Weaver and Darla Jean Weaver Revocable Living Trust Dated December 8, 2010, and Ronald C. Reiser and Lynda L. Rei-ser, Husband and Wife, and Kenneth D. Prather and Patsy J. Prather, as Co-Trustees of the Ken and Patsy Prather Family Trust, and Garry J. Harris, Plaintiffs/Appellees, v. Jeremy E. Mullen and Amy Denise McNair, Defendants/Appel-lants. Appeal from the District Court of Mayes County, the Hon. Shawn S. Taylor, Trial Judge. In this action for injunction and breach of cove-nants, Defendants appeal from a Judgment of the trial court in which the trial court, among other matters, denied Defendants’ motions for attorney fees and to apportion attorney fees according to the claims won and lost, and to limit the award of attorney fees to only a part of the action and to only those persons who won the attorney fee-carrying claim. We conclude the trial court did not abuse its discretion in award-ing attorney’s fees to Plaintiffs pursuant to 60 O.S. 2011 § 856 against Defendant Mullen and in not awarding attorney fees to Defendant McNair.

Plaintiffs’ request for appeal-related attorney fees and costs is granted as against Defendant Mullen and the case is remanded to the trial court to determine a reasonable attorney’s fee. AFFIRMED AND REMANDED FOR FURTHER PROCEEDINGS. Opinion from Court of Civil Appeals, Division II, by Barnes, J.; Thornbrugh, P.J., and Rapp, J., concur.

(Division No. 3) Thursday, June 16, 2016

113,680 — In Re the Marriage of Cheri Conrad and Joshua Conrad: Cheri Conrad, Petitioner/Appellee, vs. Joshua Conrad, Respondent/Ap-pellant. Appeal from the District Court of Okla-homa County, Oklahoma. Honorable Lisa K. Hammond, Judge. In this modification of child custody proceeding, Appellant (Father) appeals from the trial court’s order terminating the par-ties’ joint custody of their minor child, and awarding sole custody of the child to Appellee (Mother). Father contends the court erred in allowing Mother to introduce his Veterans Administration medical records into evidence because this evidence pertained to a time prior to the dissolution of marriage. The narrative statement shows the joint custody arrange-ment was not working because of the emer-gence of Father’s erratic and combative behav-ior, the parties’ lack of communication and Father’s failure to follow the mandates of the joint custody plan. The information pertaining to Father’s similar behavior in the past and his mental health condition was relevant to assist the court in determining whether continuing or terminating the joint custody arrangement was in the child’s best interests. We hold the court did not err or abuse its discretion in admitting this evidence. Father did not pro-duce any evidence demonstrating Mother’s unfitness to serve as the sole custodial parent, nor did Father produce evidence showing that the court’s decision was contrary to the child’s best interest. We cannot find the trial court’s decision to terminate the parties’ joint custody and place sole custody with Mother was con-trary to the child’s best interest. The trial court’s order is AFFIRMED. Opinion by Bell, P.J.; Joplin, J., and Hetherington, J., concur.

113,926 — William Spears, Petitioner, vs. Durant DC, LLC, Arch Insurance and The Workers’ Compensation Court of Existing Claims, Respondents. Proceeding to Review an Order of the Workers’ Compensation Commis-sion. Petitioner (Claimant) seeks review of an order of the Workers’ Compensation Commis-


sion, sitting En Banc, which sustained the order and decision of the Administrative Law Judge (ALJ). The order denied compensability to Claimant finding he did not sustain a cumu-lative trauma injury to the low back within the meaning of 85A O.S. Supp. 2013 §2(14) because Claimant had not completed at least 180 days of continuous active employment with Respondent (Employer). Claimant argues the Workers’ Compensation Commission, as an administrative agency is legally unable to consider the constitutionality of the statute in question. Claimant alleged both a cumulative trauma injury and a single event injury to his back. As there is no issue raised concerning the denial of Claimant’s alleged single event injury, the sole focus of this appeal is the denial of Claimant’s alleged cumulative trauma inju-ry. His only argument on appeal is that §2(14) is unconstitutional. Employer argues the Com-mission’s order is proper and should be sus-tained as Claimant wholly fails to establish how the denial was not supported by the evi-dence at trial. It is obvious, by way of the treat-ing medical evidence, that Claimant had an injury caused by his work. The ALJ must look at all the evidence regarding the cumulative trauma injury and not concern herself with the 180-day restriction as set out in her order filed February 24, 2015. The order of the Workers’ Compensation Commission is VACATED AND REMANDED. Opinion by Bell, P.J.; Joplin, J., and Hetherington, J., concur.


113,407 (Cons. w/113,596) — Asset Acquisi-tion Group, LLC, Plaintiff/Appellee, vs. Elbert Kirby, Defendant/Appellant. Appeal from the District Court of Tulsa County, Oklahoma. Honorable Kristen Pace, Judge. In this breach of contract action, Appellant (Kirby) appearing pro se, appeals from the trial court’s order denying his motion to vacate the default judg-ment granted in favor of Appellee (Asset Acquisition). Asset Acquisition was awarded a judgment against Kirby in the principal amount of $9,971.27, plus costs, fees and interest. Kirby sought to vacate the default judgment for lack of personal service of summons and notice of the proceeding. The record does not support Kirby’s claim. Finding no abuse of discretion, we affirm the trial court’s order. AFFIRMED. Opinion by Bell, P.J.; Joplin, J., and Hethering-ton, J., concur.

114,333 — Dale Beasley, Plaintiff/Appellee, vs. State of Oklahoma, ex rel., Department of

Public Safety, Defendant/Appellant. Appeal from the District Court of Texas County, Okla-homa. Honorable A. Clark Jett, Judge. Appel-lant, the Oklahoma Department of Public Safety (DPS), seeks review of the trial court’s Septem-ber 3, 2015 order finding the revocation of Dale Beasley’s license should be vacated and set aside and that Beasley’s driving privileges should be reinstated. DPS asserts the trial court erred as a matter of law when it ruled that Beasley’s case was not moot, as the revocation period for Beasley’s driving privileges had expired and Beasley was eligible for reinstatement at the time of his appeal. DPS has asked this court to review a question of law, which we review de novo. “An appellate court has the plenary, inde-pendent, and nondeferential authority to reex-amine a trial court’s legal rulings. Kennedy v. State ex rel. Dep’t of Public Safety, 2005 OK CIV APP 35, ¶ 12, 114 P.3d 499, 501.” Tucker v. State ex rel. Dep’t of Public Safety, 326 P.3d at 543-44. DPS argues Beasley is barred from pursuing his appeal on the basis of mootness, because Beasley’s driving revocation has already expired and he is currently eligible for rein-statement. DPS argues that Morgan v. State ex rel. Dep’t of Public Safety, 2012 OK CIV APP 78, n.2, 283 P.3d 346, 349 n.2, supports its argu-ment in favor of mootness, because the court in Morgan noted, “[w]e cannot conclude from the record whether Morgan received a temporary license, or whether her suspension has expired, which would support an argument in favor of mootness.” However, Beasley argues a viable controversy still exists and the court is in a position to grant the requested relief, to set aside the revocation and reinstate his driving privileges. State ex rel. Oklahoma Firefighters Pension and Retirement Sys. v. City of Spencer, 2009 OK 73, ¶4, 237 P.3d 125, 129. Beasley has demonstrated a complete lack of interest in pursuing a stay, or even inquiring whether the department’s order was stayed, or inquiring about the status of his suspension or the hear-ing before the district court to further his appeal; these factors are key to the reason his suspension laid in a state of neglect until March 2015 when the hearing finally occurred. “A case is moot when the issue sought to be resolved is no lon-ger part of a lively ‘case or controversy’ between antagonistic demands.” Firefighters Pension and Retirement Sys., 237 P.3d at 129 n.13, citing American Ins. Ass’n v. State Indus. Comm’n, 1987 OK 107, ¶6, 745 P.2d 737, 739. DPS did not have notice, Beasley did not seem to care about or pursue his case; no “lively case or controversy”


existed when it was finally heard in 2015. As a result, the matter was moot when the district court considered it in March 2015. The order of the trial court is REVERSED and this cause is REMANDED. Opinion by Joplin, J.; Bell, P.J., and Hetherington, J., concur.

(Division No. 4) Tuesday, June 14, 2016

114,553 — Oklahoma Schools Risk Manage-ment Trust, Plaintiff/Appellee, v. McAlester Public Schools, Defendant/Appellant. Appeal from an order of the District Court of Pittsburg County, Hon. Timothy Mills, Trial Judge, grant-ing summary judgment in favor of Oklahoma Schools Risk Management Trust (Trust) on School’s indemnity action. This is a dispute be-tween an insured and its insurer over insurance coverage. Trust admitted it provided an all-peril Plan of Coverage to School to indemnify School for losses occurring under the Plan and that Plan was in effect on the date of loss. However, Trust points to particular Plan provisions providing exclusions from coverage. Based on those exclu-sions, Trust declined to indemnify School for its losses. The parties agree the facts are undisputed and the only issue is the interpretation of the contract provisions regarding coverage. Here, the trial court concluded the terms of the Plan exclusions were unambiguous and granted sum-mary judgment to Trust. The trial court’s finding is correct and its order is affirmed. AFFIRMED. Opinion from Court of Civil Appeals, Division IV, by Goodman, C.J.; Wiseman, P.J., and Fischer, J., concur.

113,403 — West Texas Gas, Inc. and WTG Gas Marketing, Inc., Plaintiffs/ Appellees v. Kelley Farms Partnership, Jeffrey T. Kelley and Michelle Kelley, Defendants/Appellants. Defendants Kel-ley Farms Partnership, Jeffrey T. Kelley, and Michelle Kelley appeal an order of the District Court of Cimarron County, Hon. Ronald L. Kin-cannon, Trial Judge, granting Plaintiffs West Texas Gas, Inc.’s and WTG Gas Marketing, Inc.’s motion to enforce settlement agreement. The lack of mutual agreement on certain material terms doomed the enforcement of the proposed settlement. The trial court erred in finding a settlement agreement enforceable only as to cer-tain terms and consequently granting Plaintiffs’ motion to enforce. The trial court’s order is reversed, and the case is remanded for further proceedings on the merits. REVERSED AND REMANDED FOR FURTHER PROCEEDINGS. Opinion from the Court of Civil Appeals, Divi-

sion IV, by Wiseman, P.J.; Goodman, C.J., con-curs, and Fischer, J., dissents.

114,584 — Multiple Injury Trust Fund, Peti-tioner, vs. Maggie F. Wiggins and The Workers’ Compensation Court of Existing Claims, Re-spondents. Proceeding to review an order of a three-judge panel of The Workers’ Compensa-tion Court of Existing Claims, Hon. L. Brad Taylor, Trial Judge. Multiple Injury Trust Fund (MITF) seeks review of a three-judge panel order finding MITF liable for benefits to Claim-ant Maggie F. Wiggins. Under the facts of this case, although Claimant’s back was the subject of both a finding of preexisting disability and of a subsequent injury, because the finding of a preexisting disability was the product of a Crumby-finding, its use in a proceeding against MITF is prohibited by Ball v. Multiple Injury Trust Fund, 2015 OK 64, ¶ 6, 360 P.3d 499. Claimant has failed to qualify as a physically impaired person and her claim against MITF fails. The workers’ compensation trial court erred in holding otherwise, and the panel erred in its affirmance of the trial court. The panel’s order is vacated. Claimant’s claim against MITF has not been established. VACATED. Opinion from the Court of Civil Appeals, Divi-sion IV, by Goodman, C.J.; Wiseman, P.J., and Fischer, J., concur.


113,424 (Consolidated with Case No. 113,870) — Daren Ward, Plaintiff/Appellee, vs. Top View Roofing, Inc., an Oklahoma corporation, Defendant/Third-Party Plaintiff/Appellant, vs. Leslie Brown, an individual, Third-Party Defendant/ Appellee. Appeal from an order of the District Court of Oklahoma County, Hon. Patricia G. Parrish, Trial Judge. Top View Roof-ing, Inc. (Roofer), appeals the trial court’s orders granting default judgment against Roof-er, finding Roofer to be in indirect contempt of court and awarding monetary damages to Daren Ward and Leslie Brown. Roofer used Daren Ward (Independent Contractor) to solic-it customers for Roofer in return for a commis-sion. When the business relationship ended, a suit, counterclaims, and third-party petition among Independent Contractor and Roofer and Roofer and Third-Party Defendant Leslie Brown, began litigation and discovery. Each contended money was owed to them by the other. During the course of discovery, Roofer hid or altered evidence, failed to respond to discovery requests, and refused to comply with several court orders regarding access to


records and evidence. Independent Contractor filed a motion to compel discovery and later, for default judgment, against Roofer as a sanc-tion for failure to cooperate in discovery, citing 12 O.S. 2011, § 3237(B)(2)(c). After hearing and reviewing the record, the trial court found mul-tiple instances of Roofer’s fraud and willful acts of hiding or withholding evidence. We reject Roofer’s propositions of error and affirm the trial court’s orders, except as to the finding of indirect civil contempt. We find the trial court applied the incorrect standard of proof pursuant to Henry v. Schmidt, 2004 OK 34, 91 P.3d 651 and we vacate its orders finding Roof-er in indirect contempt of court and imposing a fine or imprisonment. AFFIRMED IN PART, VACATED IN PART. Opinion from Court of Civil Appeals, Division IV, by Goodman, C.J.; Wiseman, P.J., and Fischer, J., concur.

114,638 — Sean K. Bachman, Plaintiff/Appel-lee, v. State of Oklahoma, ex rel. Department of Public Safety, Defendant/Appellant. Appeal from an order of the District Court of Oklahoma County, Hon. Roma McElwee, Trial Judge, State of Oklahoma, ex rel. Department of Public Safe-ty (DPS) appeals the district court’s order deny-ing DPS’ motion to vacate an earlier order. That order set aside the driver’s license revocation of Sean K. Bachman (Driver). We find the order under review to be in error and it is reversed. DPS met its burden to show Driver was lawfully stopped, that the arresting officer had reason to believe Driver was operating a vehicle while under the influence of alcohol, and that Driver was asked, but refused, to submit to a chemical breath test. Driver’s license was properly revoked under the implied consent provisions of 47 O.S.2011, § 753. REVERSED AND REMAND-ED FOR FURTHER PROCEEDINGS. Opinion from Court of Civil Appeals, Division IV, by Goodman, C.J.; Fischer, J., concurs, and Wise-man, P.J., concurs in result.


111,446 — Michael Max, Plaintiff/Appellee, v. Heritage Construction Corporation, an Okla-homa corporation, Defendant/Appellant. Ap-peal from an order of the District Court of Tulsa County, Hon. Mary F. Fitzgerald, Trial Judge. Heritage Construction Company (Build-er) ap-peals two trial court orders arising from Homeowner Michael Max’s claim for damages to his property arising from a house fire. The first order memorialized a jury verdict against Builder and entered a money judgment against it. The second order was a pretrial interlocuto-

ry order granting Homeowner’s motion to strike the testimony of Builder’s two expert witnesses as a sanction for alleged evidence spoliation. Builder contends the suppression of its expert witnesses’ testimony was an abuse of discretion and resulted in the adverse jury verdict against it. We find Builder’s ex-pert should have been afforded the opportu-nity to testify, even though his testimony had arguably changed. The risk that his testimony would be subject to vigorous cross-examina-tion and possibly completely refuted and re-jected by the jury was Builder’s risk to take. We find the trial court erred when it concluded the allegedly changed testimony was inadmissible. Said changes go to the weight accorded the testimony, not its admissibility. We hold the trial court committed legal error when it pro-hibited Builder’s expert witnesses from testify-ing. Fundamental error occurred. The trial court’s orders are reversed. REVERSED AND REMANDED FOR NEW TRIAL. Opinion from Court of Civil Appeals, Division IV, by Good-man, C.J.; Fischer, J., concurs, and Wiseman, P.J., concurs in part and dissents in part.

114,182 — Multiple Injury Trust Fund, Peti-tioner, vs. Haywood Davis and The Workers’ Compensation Court of Existing Claims, Respon-dents. Proceeding to review an order of a three-judge panel of the Workers’ Compensation Court of Existing Claims, Hon. Carla Snipes, Trial Judge, vacating a trial court decision to deny Haywood Davis (Claimant) benefits from Multiple Injury Trust Fund (MITF). MITF first asserts that the Workers’ Compensation Court improperly included Crumby findings in deter-mining whether Claimant is permanently totally disabled. It further claims the Workers’ Com-pensation Court was without jurisdiction to award benefits because Claimant was not a physically impaired person. Based on the hold-ing in Ball v. Multiple Injury Trust Fund, 2015 OK 64, 360 P.3d 499, Claimant must have been a physically impaired person at the time of his lat-est work-related injury before MITF benefits for permanent total disability (PTD) may be award-ed. After review, we conclude, as did the three-judge panel, that Claimant was a physically impaired person at the time of his latest injury. Based on the holding in Multiple Injury Trust Fund v. Sugg, 2015 OK 78, 362 P.3d 222, the Crumby findings are combinable to determine whether Claimant is permanently totally dis-abled. Because MITF stipulated that Claimant is permanently totally disabled if the Crumby find-ings are combinable, we will not further address


this issue. Finding no error, we sustain the deci-sion of the three-judge panel. SUSTAINED. Opinion from the Court of Civil Appeals, Divi-sion IV, by Wiseman, P.J.; Goodman, C.J., and Fischer, J., concur.


113,621 — In the Matter of the Minor Child, C.L.M.-S. Vashti Gentry and Don Gentry, Ap-pellants, vs. Harry Ransom Schneider, Jr., Appellee. Appeal from the District Court of Logan County. Hon. Robert L. Hudson, Trial Judge. Mother appeals the district court’s order denying her motion to terminate the parental rights of Father and the district court’s order denying her motion for new trial. Our review of the record reveals a fundamental error in the district court proceedings which requires us to remand the case to the district court. The minor child was not represented by independent counsel during the termination proceedings. The child’s right to counsel is a fundamental and constitutional right and may not be waived, and it is the duty of an appellate court to raise the issue sua sponte, if not raised by the par-ties. In re Adoption of F.R.F., 1994 OK CIV APP 9, ¶ 11, 870 P.2d 799. The judgment of the district court is vacated. The matter is remanded to the district court for further proceedings consistent with this opinion. VACATED AND REMAND-ED. Opinion from the Court of Civil Appeals, Division IV by Fischer, J.; Goodman, C.J., and Wiseman, P.J., concur.


113,265 — The Avedis Foundation f/k/a Community Health Partners, Inc., d/b/a Unity Health Center, Plaintiff/Appellee, vs. Michael E. Kuglitsch, M.D., Defendant/Appellant. Ap-peal from Order of the District Court of Pot-tawatomie County, Hon. John G. Canavan, Jr., Trial Judge. Michael E. Kuglitsch, M.D., appeals the judgment entered against him in this breach of contract action. Avedis filed this action to recover $37,500 paid to Kuglitsch pursuant to a loan agreement signed by the parties. Kug-litsch did not contest Avedis’s claim but offered two defenses to enforcement of the contract. Both defenses depend on findings of fact dis-puted by Avedis and different from those

found by the district court. The district court’s findings of fact are supported by competent evidence. AFFIRMED. Opinion from Court of Civil Appeals, Division IV by Fischer, J; Good-man, C.J., and Wiseman, P.J., concur.

ORDERS DENYING REHEARING(Division No. 2)


112,895 (Consolidated with Case No. 113,395) — The Margaret Blair Trust, a Limited Partner of Blair Royalties, Ltd.; Margaret A. Blair, an individual and beneficiary of the Margaret Blair Trust; The Patricia Jane Bender Trust, a Limited Partner of Blair Royalties, Ltd.; Patri-cia Jane Bender, an individual and beneficiary of the Patricia Jane Bender Trust; The Mary Alice Blair Trust, a Limited Partner of Blair Royalties, Ltd. and Mary Alice Blair, an indi-vidual and beneficiary of the Mary Alice Blair Trust, Plaintiffs/Appellants, vs. Robert G. Blair, individually, as beneficiary of the Robert G. Blair Trust, as Trustee under Last Will and Tes-tament of W.W. Blair, deceased, as Trustee of each Limited Partner of Blair Royalties, Ltd., as General Partner of Blair Royalties, Ltd. and as an officer, director and owner of Comanche Resources Company; The Robert G. Blair Trust, a Limited Partner of Blair Royalties, Ltd.; Comanche Exploration Co. LLC; Comanche Resources Company; The John David Blair Trust, a Limited Partner of Blair Royalties, Ltd.; John David Blair, individually, as beneficiary of the John David Blair Trust, as Trustee under Last Will and Testament of W.W. Blair, deceased, as Trustee of each Limited Partner of Blair Roy-alties, Ltd. and as an officer, employee and owner of Comanche Exploration Co. LLC, Comanche Resources Company and Blair Roy-alties, Ltd., Defendants/Appellees. Appellants’ Petition for Rehearing is hereby DENIED.

(Division No. 3) Wednesday, June 22, 2016

112,868 — In Re: The Marriage of Virgil Allen Collins and Mary Kay Collins: Virgil Allen Col-lins, Petitioner/Appellee, vs. Mary Kay Collins, Respondent/Appellant. Appellant’s Petition for Rehearing, filed June 16, 2016, is DENIED.


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POSITIONS AVAILABLETHE OKLAHOMA BAR ASSOCIATION HEROES pro-gram is looking for several volunteer attorneys. The need for FAMILY LAW ATTORNEYS is critical, but at-torneys from all practice areas are needed. All ages, all counties. Gain invaluable experience, or mentor a young attorney, while helping someone in need. For more information or to sign up, contact Gisele Perry-man, 405-416-7086 or [email protected].

THE OFFICE OF ATTORNEY GENERAL IS CUR-RENTLY SEEKING AN ASSISTANT ATTORNEY GEN-ERAL FOR THE WORKERS COMPENSATION, IN-SURANCE AND SOCIAL SECURITY FRAUD UNIT. The applicant should be knowledgeable in the area of criminal law with preference to experience in criminal prosecution. Experience with white collar crime pre-ferred. Strong emphasis will be placed on oral and jury trial advocacy skills. Applicants must be licensed in the state of Oklahoma. Position requires some knowledge and use of Word and/or WordPerfect and Excel spread-sheets. Some travel is required. EOE. Resumes for this position should be sent to [email protected] before Aug. 1.

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