Volume 84 u No. 20 u Aug. 10, 2013
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The Oklahoma Bar Journal
Vol. 84 — No. 20 — 8/10/2013
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events Calendar
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THE OKLAHOMA BAR JOURNAL is a publication of the Oklahoma Bar
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The design of the scales and the “Oklahoma Bar Association” encircling the
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The Oklahoma Bar Journal (ISSN 0030-1655) is published three times
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Journal Board of Editors.
The Oklahoma Bar Journal
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The Oklahoma Bar Journal
Vol. 84 — No. 20 — 8/10/2013
Oklahoma Bar Association
table of
contents
Aug. 10, 2013 • Vol. 84 • No. 20
page
1507
Events Calendar
1510
Index to Court Opinions
1510
Correction on Legal Ethics Advisory Opinion
1511Supreme Court Opinions
1512
Court of Criminal Appeals Opinions
1517
Board of Governors Vacancies
1519
Court of Civil Appeals Opinions
1540
Disposition of Cases Other than by Publication
Vol. 84 — No. 20 — 8/10/2013
The Oklahoma Bar Journal
1509
Index to Opinions of Supreme Court
2013 OK 47 IN RE AMENDMENT TO RULE 2, RULES GOVERNING ADMISSION TO
THE PRACTICE OF LAW IN THE STATE OF OKLAHOMA, 5 O.S. 2011, Ch. 1, App.
5. SCAD 2013-24................................................................................................................................. 1511
Index to Opinions of Court of Criminal Appeals
2013 OK CR 12 WILLIAM HENRY JOHNSON, Appellant, v. STATE OF OKLAHOMA
Appellee. Case No. F-2012-718......................................................................................................... 1512
Index to Opinions of Court of Civil Appeals
2013 OK CIV APP 70 IN THE MATTER OF J.K.T., an Alleged Deprived Child: JACK
JOSEPH TAYLOR, SR., Appellant, vs. STATE OF OKLAHOMA, CUSTER COUNTY,
Appellee. Case No. 111,241............................................................................................................... 1519
2013 OK CIV APP 71 CHOICES INSTITUTE, INC., Plaintiff/Appellee, vs. OKLAHOMA
HEALTH CARE AUTHORITY and MIKE FOGARTY, in his capacity as CHIEF EXECUTIVE OFFICER of the OKLAHOMA HEALTH CARE AUTHORITY, Defendants/
Appellants. Case No. 109,798........................................................................................................... 1524
2013 OK CIV APP 72 JOEL RABIN and SHARON HURST, Plaintiffs/Appellants, vs. BARTLESVILLE REDEVELOPMENT TRUST AUTHORITY (“BRTA”), a public trust; WALTER ALLISON, in his official capacity as Trustee of the BRTA; JON BACCUS, in his
official capacity as Trustee of the BRTA; RANDY BLUHM, in his official capacity as
Trustee of the BRTA; SHERRY MUSSELMAN COX, in her official capacity as Trustee of
the BRTA; TOM GORMAN, in his official capacity as Trustee of the BRTA; DAVID OAKLEY, JR., in his official capacity as Trustee of the BRTA; and DONNA SKELLY, in her
official capacity as Trustee of the BRTA, Defendants/Appellees. Case No. 110,310............... 1529
2013 OK CIV APP 73 TYLER VOLKL, Plaintiff/Appellant, vs. MICHAEL THOMAS
BYFORD, Defendant/Appellee, and LESLI BYFORD, Defendant. Case No. 110,772............ 1532
2013 OK CIV APP 74 CEDAR CREEK I, IMPROVEMENT ASSOCIATION, Plaintiff/
Appellant, vs. ROBERT J. SMITH and LORA SMITH, Defendants/Appellees. Case
No. 110,795.......................................................................................................................................... 1534
Correction
Legal Ethics Advisory Opinion
2013 OK LEG ETH 03 printed July 27, 2013
The rules governing appeals may be found on the OBA website at
www.okbar.org/members/EthicsCounsel/EthicsPanel
1510
The Oklahoma Bar Journal
Vol. 84 — No. 20 — 8/10/2013
Supreme Court Opinions
Manner and Form of Opinions in the Appellate Courts;
See Rule 1.200, Rules — Okla. Sup. Ct. R., 12 O.S. Supp. 1996 (1997 T. 12 Special Supplement)
2013 OK 47
IN RE AMENDMENT TO RULE 2, RULES
GOVERNING ADMISSION TO THE
PRACTICE OF LAW IN THE STATE OF
OKLAHOMA, 5 O.S. 2011, Ch. 1, App. 5.
RULES GOVERNING ADMISSION TO
THE PRACTICE OF LAW IN THE STATE
OF OKLAHOMA
Rule 2. Admission upon motion without
examination.
SCAD 2013-24. June 20, 2013
RULE
¶1 The Court hereby adopts as set forth and
attached hereto the amendment to Rule 2 of the
Rules Governing Admission to the Practice of
Law in the State of Oklahoma, 5 O.S. 2011, Ch.
1, App. 5 by the rewording of Section 1 and
Section 1(a) .
¶2 IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that Rule 2, Rules
Governing Admission to the Practice of Law in
the State of Oklahoma, 5 O.S. 2011, Ch. 1, App.
5, as amended, shall be for official publication
and published in three (3) consecutive issues of
the Oklahoma Bar Journal and that it shall be
effective upon the date of first publication.
¶3 DONE BY ORDER OF THE SUPREME
COURT IN CONFERENCE THIS 20th DAY OF
JUNE, 2013.
/s/ Tom Colbert
CHIEF JUSTICE
COLBERT, C.J., REIF, V.C.J., WATT, COMBS,
GURICH, JJ. - CONCUR
KAUGER, J. - CONCURS IN PART, DISSENTS
IN PART
WINCHESTER, EDMONDSON, TAYLOR, JJ. DISSENT
Vol. 84 — No. 20 — 8/10/2013
AMENDED LANGUAGE ITALICIZED AND
IN BOLD
For purposes of this Rule, the term “reciprocal
state” shall mean a state which grants Oklahoma
judges and lawyers the right of admission on
motion, without the requirement of taking an
examination.
The following persons, when found by the
Board of Bar Examiners to be qualified under
Sections 1 and 2 of Rule One, may be admitted by the Supreme Court to the practice of
law in the State of Oklahoma upon the recommendation and motion of the Board, without
examination:
Section 1. Persons who are graduates of an
American Bar Association approved law
school, have been lawfully admitted to practice
and are in good standing on active status in a
reciprocal state, and have engaged in the actual
and continuous practice of law in a reciprocal
state for at least five of the seven years immediately preceding application for admission
under this Rule. For purposes of this section,
“practice of law” shall mean:
(a) Private practice as a sole practitioner or
for a law firm, legal services office, legal clinic,
or similar entity, provided such practice was
subsequent to being admitted to the practice of
law in the reciprocal jurisdiction in which that
practice occurred; . . .
The Oklahoma Bar Journal
1511
Court of Criminal Appeals Opinions
2013 OK CR 12
WILLIAM HENRY JOHNSON, Appellant, v.
STATE OF OKLAHOMA Appellee.
Case No. F-2012-718. August 1, 2013
OPINION
LUMPKIN, JUDGE:
¶1 Appellant William Henry Johnson was
tried by jury and convicted of Trafficking in
Illegal Drugs (63 O.S.Supp.2007, § 2-415), in the
District Court of Beckham County, Case No.
CF-2011-16. The jury recommended as punishment eight (8) years imprisonment and a
$50,000.00 fine. The trial court sentenced accordingly. It is from this judgment and sentence
that Appellant appeals.
¶2 Appellant raises the following propositions of error in support of his appeal:
I.The ordinance Appellant is alleged
to have violated did not require him
to use a turn signal under the circumstances. Therefore, no violation
occurred and the stop was unconstitutional.
II. O
fficers prolonged the detention of
Appellant well beyond the time necessary to effectuate the purpose of the
stop. Because Officer Buckley was
unable to articulate reasonable suspicion to justify the delay, the detention
was unreasonable and violated Appellant’s Fourth Amendment rights.
III.The State committed prosecutorial
misconduct by making improper statements during closing argument which
highly prejudiced Appellant and the
trial court’s abuse of discretion in denying Appellant’s request for a mistrial require a reversal.
¶3 After thorough consideration of these
propositions and the entire record before us on
appeal including the original record, transcripts, and briefs of the parties, we have determined that neither reversal nor modification of
sentence is warranted under the law and the
evidence.
1512
¶4 On January 8, 2011, Officer Buckley, Elk
City Police Department, was searching local
motel parking lots for a truck involved in a
vandalism incident unrelated to this case. In
one of these parking lots, Officer Buckley
observed Appellant standing beside a highend Chrysler Premium 300 model car. Although
the officer observed Appellant acting suspiciously, he drove past him on his way to check
another parking lot. Later, as Officer Buckley
traveled eastbound on Highway 66, approaching Highway 34 he encountered the Chrysler
traveling west on the Highway 66 access road
toward Highway 34. The Chrysler stopped at
the intersection of Highway 66 and Highway
34, and then turned left onto Highway 34 without using a turn signal. The Chrysler turned
left again to travel east on Highway 66. The
Chrysler was now in front of Officer Buckley
who had stopped at a red light at the intersection of Highways 66 & 34. When the intersection cleared, the officer drove through, got
behind the Chrysler and pulled it over.
¶5 Appellant was alone in the Chrysler. Officer Buckley asked for his driver’s license and
proof of insurance. Appellant was very nervous. His hands were shaking “almost uncontrollably” and he had sweat dripping down his
face. He would not make eye contact with the
officer. Appellant gave the officer his driver’s
license and a rental car agreement. Officer
Buckley told Appellant he had stopped him
because he failed to signal his left turn and he
was going to give him a warning.
¶6 Officer Buckley returned to his patrol car.
Concerned about Appellant’s nervousness and
the fact that he did not relax when told he was
only receiving a warning, Buckley decided to
ask for assistance from an officer more experienced in working the highways. The first officer he called was unavailable but his second
call brought Agent Goodman, a member of the
District II Drug Task Force and certified K-9
handler. Agent Goodman was close by and
while on his way, Officer Buckley radioed dispatch to check Appellant’s license. When Goodman arrived he and Buckley determined that
there was not probable cause or reasonable
suspicion to detain Appellant further. Upon
receiving the necessary information from dispatch, Officer Buckley completed the warning
The Oklahoma Bar Journal
Vol. 84 — No. 20 — 8/10/2013
citation, returned to Appellant’s car, handed
him the warning citation, his driver’s license
and rental agreement, shook his hand and told
him he was free to go.
¶7 Appellant’s car was running, but he did
not immediately drive away. Officer Buckley
paused, then asked Appellant if he could ask
him a few questions. Appellant replied, “yes.”
This consensual encounter led to Agent Goodman retrieving his drug dog and running him
around the perimeter of the car. The dog alerted on the trunk of the car. A subsequent search
yielded five pieces of matching luggage. Three
of the pieces contained bundles of vacuum
sealed “space saver” bags, which contained
compressed bricks of marijuana. In addition,
there was one plastic bag containing a small
amount of loose hydroponic marijuana – a
higher grade marijuana than in the other bags.
The bags were coated with dishwashing liquid
– commonly used by drug traffickers in an
attempt to mask the odor of the drugs. In total,
there were 54 bricks of marijuana weighing a
total of 95 pounds. Officers also found a wadded up receipt from a California Wal-mart for
the purchase, four days earlier, of the luggage,
vacuum sealed storage bags and dishwashing
liquid. The receipt was signed by Appellant.
¶8 In Proposition I, we find the trial court did
not abuse its discretion in denying the motion
to suppress as the record supports a finding
that Officer Buckley’s initial stop of Appellant
was legal. See Gomez v. State, 2007 OK CR 33, ¶
5, 168 P.3d 1139, 1141; State v. Goins, 2004 OK
CR 5, ¶ 7, 84 P.3d 767, 769 (both cases review a
trial court’s ruling on a suppression motion for
an abuse of discretion).
¶9 The particular provision of the Elk City
Highway Traffic Code, Chapter 22, Article I, is
identical to 47 O.S.2011, § 11-604. The statute
provides in pertinent part:
A. No person shall turn a vehicle at an
intersection, a public or private road, or a
driveway, unless the vehicle is in proper
position upon the roadway as required in
Section 11-601 of this title, or move right or
left upon a roadway unless and until such
movement can be made with reasonable
safety. No person shall so turn any vehicle
without giving an appropriate signal as
provided in subsection B of this section, in
the event any other traffic may be affected
by such movement.
Vol. 84 — No. 20 — 8/10/2013
B. A signal of intention to turn right or left
as required by law shall be given continuously during not less than the last one hundred (100) feet traveled by the vehicle
before turning.
(emphasis added).
¶10 A fundamental rule of statutory construction is to ascertain and give effect to the
intention of the Legislature as expressed in the
statute. Coddington v. State, 2006 OK CR 34, ¶
56, 142 P.3d 437, 452; State v. Anderson, 1998 OK
CR 67, ¶ 3, 972 P.2d 32, 33. “A statute should be
given a construction according to the fair
import of its words taken in their usual sense,
in connection with the context, and with reference to the purpose of the provision.” Anderson, 1998 OK CR 67, ¶ 3, 972 P.2d at 33. Statutes
are to be construed according to the plain and
ordinary meaning of their language. Wallace v.
State, 1997 OK CR 18, ¶ 4, 935 P.2d 366, 369-370.
“A statute must be held to mean what it plainly
expresses and no room is left for construction
and interpretation where the language employed is clear and unambiguous.” Id. quoting
Abshire v. State, 1976 OK CR 136, ¶ 6, 551 P.2d
273, 274.
If the purpose of § 11-604 is to prevent traffic
accidents, then the term “affected” must be read
somewhat broadly. The Legislature’s choice of
the phrase “may be affected” as opposed to “is
affected,” “will be affected,” or “most likely will
be affected” implies an intent to provide § 11-604
with a broad reach. A traffic law that punishes
only those who actually cause accidents through
their misconduct does little to promote prudent
driving. We believe that the apparent purpose of
47 O.S.2011, § 11-604 is for drivers to notify other
motorists in the immediate area of their intention to make a turn or lane change, in order to
prevent traffic accidents. We find that the
phrase used in § 11-604(A) “in the event any
other traffic may be affected by such movement” to mean a driver must engage a turn
signal “when there is a reasonable possibility that
other traffic may be affected.” United States v.
Burciaga, 687 F.3d 1229, 1233 (10th Cir. 2012)
quoting State v. Hubble, 146 N.M. 70, 206 P.3d
579, 584 (2009) (emphasis in original).
¶11 In the present case, Officer Buckley testified there were other cars on the road at the
time Appellant failed to signal his left turn and
that Appellant’s failure to signal his turn affected the other traffic. The State does not need to
prove any actual effect on other traffic in order
The Oklahoma Bar Journal
1513
to prove a violation of § 11-604. The evidence in
this case was sufficient to show a reasonable
possibility that the other traffic may have been
affected by Appellant’s failure to signal his left
turn. This traffic violation provided sufficient
probable cause for Officer Buckley to legally
stop Appellant’s vehicle. See Dufries v. State,
2006 OK CR 13, ¶ 8, 133 P.3d 887, 889 citing to
Whren v. United States, 517 U.S. 806, 809-810,
116 S.Ct. 1769, 1772, 135 L.Ed.2d 89 (1996) (in
terms of the initial justification for a traffic
stop, “[a]s a general matter, the decision to stop
an automobile is reasonable where the police
have probable cause to believe that a traffic
violation has occurred.”). See also McGaughey v.
State, 2001 OK CR 33, ¶ 25, 37 P.3d 130, 136-137
n. 21 citing United States v. Botero-Ospina, 71
F.3d 783, 787 (10th Cir.1995), (en banc) (“a traffic stop is valid under the Fourth Amendment
if the stop is based on an observed traffic violation or if the police officer has reasonable
articulable suspicion that a traffic or equipment violation has occurred or is occurring.”);
Gomez, 2007 OK CR 33, ¶ 6, 168 P.3d at 1142
(observation of traffic violation constituted sufficient cause to stop defendant). Accordingly,
Proposition I is denied.
¶12 In Proposition II, we find the trial court
did not abuse its discretion in denying the
motion to suppress as the traffic stop was not
unreasonable in scope or duration. “The scope
and duration of [a traffic stop] must be related
to the stop and must last no longer than is necessary to effectuate the stop’s purpose.” Seabolt
v. State, 2006 OK CR 50, ¶ 6, 152 P.3d 235, 237
citing Florida v. Royer, 460 U.S. 491, 500, 103 S.
Ct. 1319, 1325, 75 L.Ed.2d 29 (1983). While
“unwilling to impose a rigid time limitation on
the duration of a traffic stop,” the Seabolt Court
acknowledged that in “a routine traffic stop a
trooper may request a driver’s license, vehicle
registration and other required papers, run
necessary computer checks, and then issue any
warning or citation,” Seabolt, 2006 OK CR 50, ¶
9, n. 5, 152 P.3d at 238, n. 5 citing U.S. v. Gregoire, 425 F.3d 872, 879 (10th Cir. 2005).
¶13 Officer Buckley stopped Appellant at
approximately 11:12 a.m.1 He asked Appellant
for his license and insurance, told him why he
had been stopped and walked back to his
patrol car to call in the license. Appellant’s extreme nervous behavior and failure to relax
after being assured he was only getting a warning, caused the relatively inexperienced officer
(he had only been a police officer for approxi1514
mately two years) to find it prudent to call for
the assistance of a more experienced officer.
Before he called dispatch to check on Appellant’s license, Officer Buckley called Trooper
Splawn, but he was unavailable. At approximately 11:16 a.m., Buckley called Agent Goodman, who agreed to help. Officer Buckley then
called dispatch. Officer Buckley testified it took
approximately five to seven minutes for Agent
Goodman to arrive during which time he waited
on information from dispatch. Also during this
time, Officer Buckley observed Appellant to be
moving around on the driver’s side of his car.
The officer approached Appellant and told him
it would be a few more minutes before he heard
from dispatch. Officer Buckley returned to his
patrol car and spoke with Agent Goodman who
had arrived by this time. As Officer Buckley
continued to wait on the information from dispatch, he talked with Agent Goodman about
whether he had probable cause or reasonable
suspicion to detain Appellant further. Upon
deciding there was insufficient evidence to prolong the detention, and upon receiving the necessary information from dispatch, Officer Buckley finished writing out the citation, walked
back to Appellant’s car, returned his license and
rental agreement, gave him the warning citation
and told Appellant he was free to go. The record
does not reflect exactly what time Officer Buckley returned Appellant’s information to him.
However, Agent Goodman testified it was approximately 11:20 a.m., during the consensual
en-counter, by the time he deployed his drug
dog at the scene.
¶14 We find the few minutes Officer Buckley
took to call for assistance served a legitimate
purpose and created only a minimal intrusion
on Appellant’s liberty interest under the totality of the circumstance. See U.S. v. Sharpe, 470
U.S. 675, 687, n. 5, 105 S.Ct. 1568, 1576, n. 5, 84
L.Ed.2d 605 (1985) (it was appropriate for officer lacking experience and training to hold
detained motorist for a brief period pending
arrival of more experienced officer). See also
Storm v. State, 1987 OK CR 82, ¶ 6, 735 P.2d
1000, 1001 (defendant legally stopped for a
traffic offense and was only detained for an
additional ten to fifteen minutes beyond the
time required to issue the citation). The remainder of the traffic stop was spent waiting on
information from dispatch — a circumstance
necessary to complete the legitimate purpose
of the stop. Under the facts and circumstances
of this case, the traffic stop was not unreason-
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Vol. 84 — No. 20 — 8/10/2013
able in scope or duration. Proposition II is
therefore denied.
¶15 In Proposition III, we find Appellant was
not denied a fair trial by prosecutorial misconduct. Both instances of misconduct raised on
appeal were met with contemporaneous objections by defense counsel. In both instances, the
trial court sustained the objections, striking the
comment in one instance. The court’s action
cured any error. Hanson v. State, 2009 OK CR
13, ¶ 19, 206 P.3d 1020, 1028. Proposition III is
denied.
¶16 Accordingly, this appeal is denied.
DECISION
¶17 The Judgment and Sentence is
AFFIRMED. Pursuant to Rule 3.15, Rules of the
Oklahoma Court of Criminal Appeals, Title 22,
Ch.18, App. (2013), the MANDATE is ORDERED issued upon the delivery and filing of
this decision.
AN APPEAL FROM THE DISTRICT COURT
OF BECKHAM COUNTY
THE HONORABLE F. PAT VERSTEEG,
ASSOCIATE DISTRICT JUDGE
Vol. 84 — No. 20 — 8/10/2013
APPEARANCES AT TRIAL
Keith J. Nedwick, Heather Strohmeyer, 104
East Eufaula, Norman, OK 73069, Counsel for
Defendant
Dennis A. Smith, District Attorney, Shelley Varnell, Assistant District Attorney, Beckham
County Courthouse, Sayre, OK 73662, Counsel
for the State
APPEARANCES ON APPEAL
Keith J. Nedwick, Heather Strohmeyer, 104
East Eufaula, Norman, OK 73069, Counsel for
Appellant
E. Scott Pruitt, Attorney General of Oklahoma,
Judy King, Assistant Attorney General, 313
N.E. 21st St., Oklahoma City, OK 73105, Counsel for the State
OPINION BY: LUMPKIN, J.
LEWIS, P.J.: CONCUR
SMITH, V.P.J.: CONCUR
C. JOHNSON, J.: CONCUR
A. JOHNSON, J.: CONCUR
The Oklahoma Bar Journal
1515
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1516
The Oklahoma Bar Journal
Vol. 84 — No. 20 — 8/10/2013
BAR NEWS
2014 OBA Board of Governors Vacancies
Nominating Petition deadline: 5 p.m. Friday, Sept. 13, 2013
OFFICERS
Summary of Nominations Rules
President-Elect
Current: Renée DeMoss, Tulsa
Ms. DeMoss automatically becomes
OBA president Jan. 1, 2014
(One-year term: 2014)
Nominee: Vacant
Vice President
Current: Dietmar Caudle, Lawton
(One-year term: 2014)
Nominee: Vacant
Not less than 60 days prior to the Annual Meeting,
25 or more voting members of the OBA within the
Supreme Court Judicial District from which the
member of the Board of Governors is to be elected
that year, shall file with the Executive Director, a
signed petition (which may be in parts) nominating
a candidate for the office of member of the Board of
Governors for and from such Judicial District, or
one or more County Bar Associations within the
Judicial District may file a nominating resolution
nominating such a candidate.
BOARD OF GOVERNORS
Not less than 60 days prior to the Annual Meeting,
50 or more voting members of the OBA from any
or all Judicial Districts shall file with the Executive
Director, a signed petition nominating a candidate
to the office of Member-At-Large on the Board of
Governors, or three or more County Bars may file
appropriate resolutions nominating a candidate for
this office.
Supreme Court Judicial District Two
Current: Gerald C. Dennis, Antlers
Atoka, Bryan, Choctaw, Haskell, Johnston, Latimer,
LeFlore, McCurtain, McIntosh, Marshall, Pittsburg,
Pushmataha and Sequoyah counties
(Three-year term: 2014-2016)
Nominee: Vacant
Supreme Court Judicial District Eight
Current: D. Scott Pappas, Stillwater
Coal, Hughes, Lincoln, Logan, Noble, Okfuskee,
Payne, Pontotoc, Pottawatomie and Seminole
counties
(Three-year term: 2014-2016)
Nominee: Vacant
Not less than 60 days before the opening of the
Annual Meeting, 50 or more voting members of the
Association may file with the Executive Director a
signed petition nominating a candidate for the
office of President-Elect or Vice President or three
or more County Bar Associations may file appropriate resolutions nominating a candidate for
the office.
Supreme Court Judicial District Nine
Current: O. Chris Meyers II, Lawton
Caddo, Canadian, Comanche, Cotton, Greer, Harmon, Jackson, Kiowa and Tillman counties
(Three-year term: 2014-2016)
Nominee: Vacant
If no one has filed for one of the vacancies, nominations to any of the above offices shall be received
from the House of Delegates on a petition signed by
not less than 30 delegates certified to and in attendance at the session at which the election is held.
Member-At-Large
Current: Robert S. “Bob” Farris, Tulsa
(Three-year term: 2014-2016)
Nominee: Vacant
See Article II and Article III of OBA Bylaws for
complete information regarding offices, positions,
nominations and election procedure.
Elections for contested positions will be held at the
House of Delegates meeting Nov. 15, during the
Nov. 13–15 OBA Annual Meeting. Terms of the
present OBA officers and governors will terminate
Dec. 31, 2013.
Nomination and resolution forms can be found at
www.okbar.org/members/bog/bogvacancies.
Vol. 84 — No. 20 — 8/10/2013
The Oklahoma Bar Journal
1517
OKLAHOMA COUNTY
PRO SE WAIVER DIVORCE PROJECT
Help mentor the next generation of lawyers
while making a difference in Oklahoma County.
No family law experience required.
4.5 hours of free CLE (includes ethics credit)
Saturday, August 24, 2013
9 a.m. – 2 p.m.
Oklahoma City University School of Law
Pre-register: 405-208-5332 or lawcareers@okcu.edu
Breakfast and lunch will be provided.
1518
The Oklahoma Bar Journal
Vol. 84 — No. 20 — 8/10/2013
Court of Civil Appeals Opinions
2013 OK CIV APP 70
IN THE MATTER OF J.K.T., an Alleged
Deprived Child: JACK JOSEPH TAYLOR,
SR., Appellant, vs. STATE OF OKLAHOMA,
CUSTER COUNTY, Appellee.
Case No. 111,241. June 10, 2013
APPEAL FROM THE DISTRICT COURT OF
CUSTER COUNTY, OKLAHOMA
HONORABLE JILL CARPENTER WEEDON,
TRIAL JUDGE
AFFIRMED
Ryan A. Meacham, MEACHAM LAW FIRM,
Clinton, Oklahoma, for Appellant,
S. Brooke Gatlin, Assistant District Attorney,
Arapaho, Oklahoma, for Appellee.
BRIAN JACK GOREE, Judge:
¶1 Appellant, Jack Joseph Taylor, Sr., (Father)
appeals the trial court order terminating his
parental rights to his minor child, J.K.T. (Child)
based on a jury verdict which found his parental rights to other children had been terminated. 10A O.S. 2011§1-4-904(B)(6). We affirm
because the jury’s verdict expressly identified
the conditions that had not been corrected.
¶2 The Department of Human Services (DHS)
filed an application for emergency custody of
Child, and Father was arrested and charged
with child abuse by injury, a felony, in Custer
County District Court Case No. CF-2010-383.
The trial court entered an order of adjudication
determining Child to be deprived “. . . by reason of failure to protect from abuse as to the
mother; abuse as to the father and fathers (sic)
prior child welfare history resulting in termination of two siblings.”
¶3 On February 3, 2011, State filed its Initial
Petition to Terminate Parental Rights, and on
February 17, 2011, State filed an Amended Petition to Terminate Parental Rights of Father,
Jack Taylor based upon 10A O.S. §1-4-904(B)(6).
Father was then convicted of child abuse by
injury in the criminal case.1 On September 12,
2012, State filed its Amended Petition to Terminate Parental Rights of Jack Taylor Sr., based on
10A O.S. 2011§1-4-904(B)(5) and (6).2 It alleged:
Vol. 84 — No. 20 — 8/10/2013
That the biological father of said child is
Jack Joseph Taylor, Sr, who is currently
incarcerated at the Oklahoma State Reformatory, Granite, Oklahoma. That the rights
of the father to other children have been
terminated and the conditions that led to
the prior termination have not been corrected, specifically that the parental rights
of the father to James J. Taylor (dob:
01/19/2000) and Jessica L. Creswell (dob:
10/17/2001) were terminated in Custer
County case number JD-2002-33 on May
10, 2004; and that the father’s failure to correct the conditions that led to the removal of
the other children from his home and that
led to the prior termination of parental
rights have not been corrected as evidenced
by the adjudication of this child as deprived
by the father and the circumstances surrounding the Department of Human Services involvement with the father and family
from February 26, 2010 through September
16, 2010.
¶4 Following the trial, the jury returned a
verdict terminating Father’s parental rights.3
The trial court entered its Order Sustaining
State’s Motion to Terminate Parental Rights
upon a Jury Verdict pursuant to 10A O.S.
2011§1-4-904(B)(6). In the order, the trial court
adopted the jury’s findings and stated:
Specifically, the Jury found that based on
the evidence submitted, the State had met
its burden to show that the parental rights of
Jack Taylor to prior children were terminated. The jury further found that the following
conditions that led to the termination of Jack
Taylor’s parental rights to prior children
have not been corrected:
1. Failure to develop appropriate parenting skills;
2. Failure to provide appropriate supervision for the child(ren);
3. Failure to address emotional stability;
4. Failure to provide economic stability
for the chilre(ren).[sic]
Additionally, the jury found that termination of Jack Taylor’s parental rights in
and to [JKT] is in the child’s best interest.
The Oklahoma Bar Journal
1519
Father appeals.
¶5 When reviewing a trial court’s termination of parental rights, the reviewing court
examines the record on appeal to ascertain
whether its decision is supported by clear and
convincing evidence. In re S.B.C., 2002 OK 83,
¶6, 64 P.3d 1080, 1082.
I.
¶6 Father contends the trial court erred in
failing to instruct the jury regarding the specific conditions he allegedly failed to continue
to correct in the present case.4 He claims that,
as a result, the jury was effectively precluded
from making a proper determination regarding
the termination of Father’s parental rights.
¶7 “No judgment shall be set aside by any
appellate court on the ground of misdirection
of the jury . . . unless it is the opinion of the
reviewing court that the error complained of
has probably resulted in a miscarriage of justice, or constitutes a substantial violation of a
constitutional or statutory right.” 20 O.S. 2011
§3001.1.
¶8 Title 10A O.S. 2011 §1-4-904(B)(6) provides
that a trial court may terminate the rights of a
parent to a child based on a finding that:
a. the rights of the parent to another child
have been terminated, and
b. the conditions that led to the prior termination of parental rights have not been
corrected.
¶9 Father submits that case law has interpreted the provisions of §1-4-904(B)(5), the termination of parental rights upon failure to
correct conditions, to require an identification
of the uncorrected conditions in a jury instruction. He cites In the Matter of R.A., W.A., Z.A.,
and A.A., 2012 OK CIV APP 65, 280 P.3d 366,
wherein the Court of Civil Appeals conceded
there exists a split of authority in the Court
concerning the specifics that must be addressed
by the jury and/or the trial court through jury
instructions, verdict forms, and the order of
termination. It held that “absent identification
of the condition(s) the parent failed to correct
in both the jury instructions and the termination order the appellate courts are ‘effectively
precluded from determining if the trial court
acted properly in terminating Appellant’s
parental rights,’” quoting Matter of B.M.O.,
1992 OK CIV APP 89, ¶10, 838 P.2d 38, 40.
1520
¶10 On the other hand, “there is no Oklahoma Supreme Court precedent mandating such
precise detail in Orders terminating parental
rights for failure to correct conditions, . . . .” In
the Matter of E.G., 2010 OK CIV APP 34, ¶7, 231
P.3d 785, 788; In the Matter of Children of M.B.,
2010 OK CIV APP 41, ¶10, 232 P.3d 927, 931.
Okla. Const. Art. VII §15 provides:
In all jury trials the jury shall return a
general verdict, and no law in force nor any
law hereafter enacted, shall require the
court to direct the jury to make findings of
particular questions of fact, but the court
may, in its discretion, direct such special
findings.
¶11 In In the Matter of C.T., 2003 OK CIV APP
107, 82 P.3d 123, the mother asserted the jury,
as fact-finder, should be required to make specific factual findings on all the statutory requisites for termination of her parental rights.
Citing Okla. Const. Art. VII §15, the Court of
Civil Appeals found no authority requiring a
jury in parental-rights-termination actions to
enter specific findings on each statutory ground
for termination.
¶12 Although Father argues Instructions No.
14, 15, and 16 were improperly given because
they did not include identification of the specific conditions he continued to fail to correct,
jury instructions are to be viewed as a whole
rather than separately. Middlebrook v. Imler,
Tenny & Kugler M.D.’s Inc., 1985 OK 66, ¶34,
713 P.2d 572, 585. They are sufficient if, considered as a whole, they present the law applicable
to the issues. Quarles v. Panchal, 2011 OK 13,
¶11, 250 P.3d 320, 323.
¶13 Here, those instructions, Instruction No.
17,5 and the verdict form entitled Terminate
Parental Rights, considered as a whole, correctly state the law and are consistent with
§1-4-904(B)(6). The best guide to determine if a
party was prejudiced by erroneous instructions
is to look at whether the verdict is supported
by clear and convincing evidence. See Juvenal
By and Through Juvenal v. Okeene Public Schools,
1994 OK 83, ¶4, 878 P.2d 1026, 1030. If clear and
convincing evidence supports the verdict, we
will not disturb it because of erroneous instructions “unless it appears reasonably certain the
jury was misled.” Id.
¶14 The record contains clear and convincing
evidence Father continued to fail to correct the
conditions which led to his prior termination
of parental rights; the trial court identified the
The Oklahoma Bar Journal
Vol. 84 — No. 20 — 8/10/2013
same five conditions on the verdict form which
were listed on the individualized service plan
(ISP)6 in the prior termination case; and from
those five conditions identified on the verdict
form, the jury determined Father continued to
fail to correct four conditions. The jury was
aware of and considered all of the conditions
Father was alleged to have failed to continue to
correct. The jury was not effectively precluded
from making a proper determination regarding
the termination of Father’s parental rights.
¶15 Additionally, Father does not contend
error in the form of the Order. The Order mirrored the verdict form in finding Father’s failure to correct four of the five conditions listed
on the verdict form. The jury and the trial court
made findings sufficient to support the termination of Father’s parental rights.
¶16 Not only does clear and convincing evidence support the verdict, we do not find the
instructions as a whole “probably resulted in a
miscarriage of justice.” 20 O.S. 2011 §3001.1.
II.
¶17 Next, Father alleges the trial court improperly admitted Mother’s testimony from Father’s
criminal trial over his objection because Mother
was not an unavailable witness pursuant to 12
O.S. 2011 §2804. That statute provides:
Hearsay Exception; Declarant Unavailable
A. “Unavailability as a witness,” as used in
this section, includes the situation in which
the declarant:
...
5. Is absent from the hearing and the proponent of the declarant’s statement has
been unable to procure the declarant’s
attendance or, in the case of a hearsay
exception under paragraphs 2, 3, or 4 of
subsection B of this section, the declarant’s
attendance or testimony, by process or
other reasonable means.
¶18 Father argues State failed its burden of
proving Mother was unavailable to testify at
the termination hearing. The State has the burden of establishing that “the witness is unavailable despite good-faith efforts undertaken prior
to trial to locate and present that witness.” Ohio
v. Roberts, 448 U.S. 56, 74-75, 100 S.Ct. 2531,
2543, 65 L.Ed.2d 597 (1980).
¶19 Mother was a party in this matter, and
the trial court, who had presided over each
Vol. 84 — No. 20 — 8/10/2013
stage of the adjudication process, was familiar
with Mother through her appearances at the
various hearings. During the course of the termination proceedings, Mother moved to Amarillo, Texas, to live with her mother. In May
2012, while living there, her parental rights to
Child were terminated.7
¶20 At the motion hearing prior to trial,
when asked by the trial court if she had made
efforts to locate Mother, State’s counsel stated:
Yes, Judge. I have, since last — last week,
when I got the — lsince last Wednesday, I
have had two different people calling her
on the phone number that does work.
I have had contact with the police, sheriff’s agency in Amarillo, trying to see if
they can go out and locate and see if she
will call our office.
I have sent a subpoena certified mail to
her. I have, um — lshe has not appeared
here in court for this case, and her rights
were defaulted out.
She did appear for the jury trial and was
sworn, under oath, and was cross-examined by Mr. Taylor’s defense attorney.
So for all of those reasons, Judge, that’s
why I’m asking to declare her unavailable
and ask to read her trial transcript into the
record.
THE COURT: Okay. This appears to fit
under 2804(B)(1). She appears to be unavailable. I don’t believe it’s the Proponent’s — it’s not the State’s fault that she
is unavailable.
And I mean, if you will look at the
record in this case, she has not been coming
to court and quit coming to court over a
year ago.
She was — she did give testimony at
another hearing on the very same issue.
Which would be the allegation of, you
know, the injury to the child. He had the
opportunity to cross-examine.
¶21 A subpoena was issued for Mother’s
attendance at Father’s hearing, and mailed,
certified mail, to the Amarillo, Texas, address.
The subpoena sent to the Amarillo, Texas,
address, and State’s other attempts to contact
Mother constitute a good faith effort to locate
her. In this particular case, we cannot say the
trial court abused its discretion in finding
The Oklahoma Bar Journal
1521
Mother unavailable for the current proceedings. See In re J.D.H., 2006 OK 5, ¶4, 130 P.3d
245, 247.
¶22 Father also complains that pursuant to
12 O.S. 2011 §2804(B)(1), there was no similar
motive requisite to justify the allowance of
Mother’s testimony from Father’s criminal
trial. Section 2804 (B) (1) provides:
B. The following are not excluded by the
hearsay rule if the declarant is unavailable
as a witness:
1. Testimony given as a witness at another
hearing of the same or another proceeding,
or in a deposition taken in compliance with
law in the course of the same or another
proceeding, if the party against whom the
testimony is now offered or, in a civil action
or proceeding, a predecessor in interest
had an opportunity and similar motive to
develop the testimony by direct, cross or
redirect examination;
In his criminal prosecution, Father was charged
with child abuse under 21 O.S. 2010 §843.5.
This section defines abuse by referring to 10A
O.S. 2011 §1-1-105(2), which provides:
“Abuse” means harm or threatened harm
or failure to protect from harm or threatened harm to the health, safety, or welfare
of a child by a person responsible for the
child’s health, safety, or welfare, including
but not limited to nonaccidental physical
or mental injury, sexual abuse, or sexual
exploitation. Provided, however, that nothing contained in this act shall prohibit any
parent from using ordinary force as a
means of discipline including, but not limited to, spanking, switching, or paddling.
¶23 Father argues the cross-examination of
Mother at the criminal trial did not encompass
the same type of inquiry as the termination
trial required, because State sought to terminate his parental rights pursuant to 10A O.S.
2011 §1-4-904(B)(6). Therefore, Father’s criminal defense counsel had no similar motive for
developing Mother’s testimony in the criminal
trial.8
¶24 The term “similar motive” should be
used in its ordinary sense. Honeycutt v. State,
1988 OK CR 76,¶3, 754 P.2d 557, 560. Although
the current proceeding is a civil proceeding
and the other a criminal proceeding, the
motives of Father’s criminal counsel for cross1522
examining Mother are similar to those in the
present case. At the criminal trial, Father’s
counsel’s motivation was the impeachment of
Mother’s testimony regarding events surrounding September 16, 2010, the day Child
was taken to the hospital with bruises and cuts
to his face.9 The same impeachment motivation
exists in the present matter and is relevant
because Child was adjudicated deprived based,
in part, on allegations of child abuse in the
petition to adjudicate Child as deprived.
¶25 Because the motives of Father’s criminal
defense were similar to those in the present
case, the trial court did not abuse its discretion
in admitting Mother’s testimony from Father’s
criminal matter. 12 O.S. 2011 §2804(B)(1).
III
¶26 Finally, citing 12 O.S. 2011 §2404(B),10
Father urges the trial court abused its discretion in admitting evidence11 he had previously
relinquished his parental rights to two children
in Arizona and relied on this evidence “as a
foundation in its jury instructions.”12 He argues
this evidence is not relevant to the proof required
under 10A O.S. 2011 §1-4-904, and that none of
the enumerated exceptions-proof of motive,
opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident,
make his prior bad acts relevant.
¶27 During the trial, two DHS workers, Mr.
Bailey and Ms. Tapper, testified Father had
relinquished his parental rights to two children
in Arizona.13 Assuming arguendo, this testimony is irrelevant, Father has failed to demonstrate he was prejudiced by its admission.
Pursuant to §1-4-904(B)(6), the jury and the
trial court found Father’s parental rights should
be terminated specifically because four specific
conditions which led to the prior termination
of Father’s parental rights had not been corrected in the present case. Therefore, even if the
testimony were irrelevant, its admission was
harmless error. See Matter of T.R.W., 1985 OK
99, ¶6, 722 P.2d 1197, 1202.
¶28 AFFIRMED.
HETHERINGTON, P.J., concurring:
¶29 I concur in this opinion but write to
express my approval of the trial court’s careful
consideration of instructions and verdict form
that more fully provides constitutional protections of specificity regarding uncorrected conditions as a basis for parental rights termination. I
The Oklahoma Bar Journal
Vol. 84 — No. 20 — 8/10/2013
adopt Judge Mitchell’s concurrence and agree
that at least this case is a move in the correct
legal direction. My review of the trial transcript
revealed a thorough presentation of detailed
evidence allowing for jury consideration of
uncorrected condition facts upon which the
jury could make an informed decision on each
special interrogatory finding required in the
verdict form.
¶30 I also find, while harmless error, allowing Mother’s testimony from Father’s child
abuse trial to be read to the jury in this case, is
an evidentiary minefield. I find no fault with
the “unavailable witness” hearsay ruling. But
the inquiry does not end there. What is most
problematic here is the 12 O.S. 2404(B) analysis
of introducing hearsay (and some hearsay
within hearsay) evidence from the child abuse
trial with the intent to prove the character of
Father in order to show his actions in this case
are in conformity with his actions in the child
abuse case or, whether it is offered for a permissible evidence purpose. The final step of
judicial weighing of this evidence could easily
have found the probative value of admissibility, in light of the other evidence presented in
this trial, was out-weighed by its prejudicial
effect on the jury. I find harmless error only
because after review of the other testimony, I
cannot find the verdict result likely to have
been different had Mother’s hearsay testimony
not been allowed.
MITCHELL, J., concurring:
¶31 I approve of and applaud the trial court
in its termination order specifically finding
which uncorrected conditions were the basis of
the termination of parental rights. I also approve
of and applaud the trial court’s use of a verdict
form that allowed the jury to identify the specific conditions it determined to be uncorrected. However, either in Instruction No. 14 or in
a separate instruction, the jury should have
been informed of those same conditions listed
in the verdict form but in the context of what
the State had alleged and had the burden to
prove. That would be a better practice and
would minimize the possibility of a successful
due process challenge as occurred in Matter of
R.A., et al., 2012 OK CIV APP 65, 280 P.3d 366.
¶32 All in all, I agree that the Instructions
taken as a whole adequately informed the jury
of the issues and applicable law and were in no
way prejudicial to Father.
Vol. 84 — No. 20 — 8/10/2013
1. On November 17, 2011, State filed a Petition to Terminate Parental
Rights of Christina Gregory and Jack Taylor Sr. to include the termination
of the parental rights of Christina Gregory, Child’s mother (Mother).
On May 17, 2012, State filed an Amended Petition to Terminate
Parental Rights of Father, Jack Taylor, based upon 10A O.S. §1-4-904(B)
(8)(2) as a result of Father’s conviction in the criminal case. However,
the trial court granted Father’s motion in limine to exclude evidence of
the criminal trial and Father’s conviction.
2. This amended petition stated Mother’s parental rights were
terminated on May 9, 2012.
3. The verdict form provided:
VERDICT
TERMINATE PARENTAL RIGHTS
We, the jury, empanelled and sworn in the above entitled cause,
do upon our oaths, find that the parental rights of the parent,
Jack Taylor, Sr. to the child, [J.K.T.] SHOULD BE TERMINATED
on the statutory ground that the rights of the father to another
child or children have been terminated, and the conditions that
led to the prior termination of parental rights have not been corrected. We find the Father failed to correct the conditions indicated below:
___ failure to establish parent/child bond;
_X_ failure to develop appropriate parenting skills;
_X_ failure to provide appropriate supervision for the child(ren);
_X_ failure to address emotional stability;
_X_ failure to provide economic stability for the child(ren).
4. At trial, Father objected to Instructions No. 14, 15, and 16. He
argues those instructions should have included identification of the
specific conditions he allegedly failed to continue to correct in the present case.
Instruction No. 14 (OUJI-Juv No. 3.6)
The State seeks to terminate the parent’s rights on the basis that
a child has been born to a parent whose parental rights to
another child have already been terminated before. In order to
terminate parental rights on this basis, the State must prove by
clear and convincing evidence each of the following elements:
1. The child has been adjudicated to be deprived;
2. The parent’s parental rights to another child have been terminated before;
3. The conditions which led to the prior termination of parental
rights have not been corrected; and,
4. Termination of parental rights is in the best interest of the
child.
In In re Amendments to Oklahoma Uniform Jury Instructions for Juvenile
Cases, 2005 OK 12 ¶6, 116 P.3d 119, 147, the Oklahoma Supreme Court
expressly adopted this uniform instruction.
Instruction No. 15 (OUJI-Juv No. 3.5 modified)
In order for you to find that there has been a failure to correct the
conditions which caused a child to be found deprived, you must
find that the Court placed the parent on notice of the conditions
to be corrected by means of an individualized service plan.
An “individualized service plan” provides a list of activities or
standards of conduct that are designed to assist the parent to
correct the conditions that caused a child to be deprived.
Failure to complete an individualized service plan alone is not a
basis to terminate parental rights, but it is evidence that the jury
may consider in determining whether the conditions have been
corrected.
Instruction No. 16 (OUJI-Juv No. 2.5)
The State has a burden of proving all the requirements for the
termination of the parent’s rights by clear and convincing evidence and you may return a verdict finding that parental rights
are terminated only if you find that the State has satisfied its
burden of proof.
When I say a party has the burden of proving any proposition by
clear and convincing evidence, I mean that you must be persuaded, considering all the evidence in the case, that the proposition on
which the party has this burden of proof is highly probable and
free from serious doubt.
For purposes of this case, you are required to accept the following matters as true:
1.) The child was adjudicated deprived and made a ward
of this Court on the 22nd day of December, 2010.
2.) The natural mother of said child is Christina Gregory,
whose parental rights were terminated by the Court on the
9th day of May 2012.
3.) The biological father of said child is Jack Joseph Taylor
Sr. His parental rights to other children were terminated in
Custer County case number JD-2002-33 on the 10th day of
May, 2004.
The Oklahoma Bar Journal
1523
4.) In 1999 Child Protective Services for the State of Arizona took custody of other children of Jack Joseph Taylor, Sr.
On July 16, 1999, Jack Joseph Taylor, Sr. voluntarily signed a
“Consent to Place a Child for Adoption” which under Arizona
law severes (sic) the parent-child relationship.
5.
Instruction No. 17 (OUJI-Juv 2.7)
If you find that the State has proved by clear and convincing
evidence that the parental rights of the parent, Jack Taylor, Sr., to
the child, James Kirby Taylor, should be terminated on the statutory grounds of the rights of the parent to another child have
been terminated, and the conditions that led to the prior termination of parental rights have not been corrected, you should sign
and return the verdict form entitled Terminate Parental Rights.
Otherwise, you should sign and return the verdict form entitled
Do Not Terminate Parental Rights for that parent and that child.
Notify the Bailiff when you have arrived at a verdict so that you
may return it in open court.
6. The ISP was an exhibit at trial.
7. At trial, Mr. Clark, the DHS permanency planning worker testified that before Mother’s parental rights were terminated, she had
“quit appearing to court.” While living in Amarillo, Mother indicated
she wished to relinquish her parental rights to Child.
8. Father concedes his criminal defense counsel had the opportunity to cross-examine Mother at his criminal trial.
9. September 16, 2010, was also the date Child was removed from
the home.
10. Section 2404(B) provides:
B. Evidence of other crimes, wrongs, or acts is not admissible to
prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation,
plan, knowledge, identity or absence of mistake or accident.
11. At a motion hearing before trial, Father made a motion in limine to prohibit State “ . . . from admitting, presenting, using or eliciting
any testimony regarding Arizona Child Protective Services records
and allegations,” because in that record there was no termination petition or deprived petition which contained any allegations. The trial
court partially sustained Father’s motion, restricting the amount of
detail which could be presented regarding the Arizona case.
12. Instruction No. 16 (OUJI-Juv. 2.5) required the jurors to accept
as true:
...
3.) The biological father of said child is Jack Joseph Taylor Sr. His
parental rights to other children were terminated in Custer
County case number JD-2002-33 on the 10th day of May, 2004.
4.) In 1999, Child Protective Services for the State of Arizona took
custody of other children of Jack Joseph Taylor, Sr. On July 16,
1999, Jack Joseph Taylor, Sr. voluntarily signed a “Consent to
Place a Child for Adoption” which under Arizona law severes
(sic) the parent-child relationship.
Father did not object to paragraph four of this instruction, or “stipulation.”
13. Holly Bonner is the biological mother of the two children in the
prior Oklahoma termination case and the Arizona children whose
parental rights Father relinquished. Father testified one of three Arizona children died of sudden infant death syndrome. Bonner relinquished her parental rights to all four of the children.
2013 OK CIV APP 71
CHOICES INSTITUTE, INC., Plaintiff/
Appellee, vs. OKLAHOMA HEALTH CARE
AUTHORITY and MIKE FOGARTY, in his
capacity as CHIEF EXECUTIVE OFFICER of
the OKLAHOMA HEALTH CARE
AUTHORITY, Defendants/Appellants.
Case No. 109,798. May 23, 2013
APPEAL FROM THE DISTRICT COURT OF
GARFIELD COUNTY, OKLAHOMA
HONORABLE PAUL K. WOODWARD,
JUDGE
REVERSED AND REMANDED
1524
Howard J. Pallotta, Oklahoma City, Oklahoma,
for Appellants,
Tom Q. Ferguson, Jon E. Brightmire, James R.
Bullard, Tulsa, Oklahoma, for Appellee.
Larry Joplin, Chief-Judge:
¶1 This is an appeal by the Oklahoma Health
Care Authority (OHCA) from an order of the
district court dismissing with prejudice the
April 30, 2009 OHCA decision, wherein OHCA
found Choices Institute, Inc. (Choices or Choices Institute) received Medicaid overpayments
in the amount of $53,666. Choices Institute
appealed the OHCA overpayment finding to
the district court, arguing the institute had
been deprived of due process without a proper
hearing to protect its interests in the funds it
had already been paid. Choices Institute also
argued the record did not support the finding
of overpayment and the OHCA had failed to
act in a timely manner, because the decision
from the Medical Advisory Committee (MAC)
was not made for over six months, in excess of
the time allowed under the applicable administrative regulation. See O.A.C. §317: 2-1-7(6)
(2006).
¶2 The district court found the final agency
order, issued by the Chief Executive Officer of
the OHCA (Michael Fogarty), implicated a
property interest of Choices Institute, so that
Choices had a right to due process prior to the
funds being taken from it. The court found that
Choices was not permitted in the course of the
agency’s process to fully defend and/or present its position regarding the money Choices
claimed to have earned as a Medicaid provider.
The court also found the agency failed to follow decision deadlines imposed in the agency
regulations. Finally, the court reversed the
April 30, 2009 decision of the OHCA and
instructed OHCA to refund the money taken
from Choices, and the court dismissed all proceedings with prejudice.
¶3 The Oklahoma Administrative Procedures
Act, 75 O.S. 2001 §250 et seq. (OAPA), governs
district court review of decisions of the Oklahoma Health Care Authority. 63 O.S. 2001
§5052(D); Choices Institute v. Oklahoma Health
Care Authority, 2010 OK CIV APP 117, 241 P.3d
705; Pharmcare Oklahoma, Inc. v. State Health
Care Authority, 2007 OK CIV APP 5, 152 P.3d
267. Except in circumstances not present here,
judicial review is confined to the record made
before the administrative tribunal. 75 O.S.
§321; City of Tulsa v. Public Employees Relations
The Oklahoma Bar Journal
Vol. 84 — No. 20 — 8/10/2013
Board, 1998 OK 92, ¶12, 967 P.2d 1214, 1219.
“Generally, an administrative decision like that
here should be affirmed if it is a valid order
and the administrative proceedings are free
from prejudicial error to the appealing party.”
City of Tulsa, 1998 OK 92, ¶12, 967 P.2d at 1219;
75 O.S. §322(1). However, an administrative
order is subject to modification or reversal if:
[T]he substantial rights of the appellant or
petitioner for review have been prejudiced
because the agency findings, inferences,
conclusions or decisions, are:
(a) in violation of constitutional provisions;
or
(b) in excess of the statutory authority or
jurisdiction of the agency; or
(c) made upon unlawful procedure; or
(d) affected by other error of law; or
(e) clearly erroneous in view of the reliable, material, probative and substantial
competent evidence, . . . , including matters properly noticed by the agency upon
examination and consideration of the
entire record as submitted; but without
otherwise substituting its judgment as to
the weight of the evidence for that of the
agency on question of fact; or
(f) arbitrary or capricious; or
(g) because findings of fact, upon issues
essential to the decision were not made
although requested.
75 O.S. §322(1)(a-f). On appeal from the district
court’s review, the appellate courts apply the
same standards of review to the administrative
record. 75 O.S. §322(1); City of Tulsa, 1998 OK
92, ¶12, 967 P.2d at 1219.
¶4 This case began when the OHCA’s Surveillance, Utilization and Review System
(SURS) conducted an unannounced audit of
payments made to Choices Institute in March
2007. SURS audited claims and payments made
to Choices from August 1, 2005 to October 31,
2006. During the audit time period, Choices had
12,232 claims. In the course of the audit, SURS
initially found Choices had a claims error rate of
45.4% for the 136 claims it reviewed. The OHCA
then extrapolated that error rate over the entire
number of claims paid during the audit period
and determined Choices had been overpaid in
Medicaid payments, necessitating a refund from
Choices in the amount of $174,911.
Vol. 84 — No. 20 — 8/10/2013
¶5 Over the course of the next eleven months,
Choices Institute requested reconsideration of
the error determinations, the error rate and the
corresponding overpayment determination.
Choices was successful to a great extent, because
after submitting considerable additional documentation, OHCA revised the error rate several
times. By April 2008, OHCA had reduced Choices error rate to 25.2%, with a corresponding
overpayment determination of $84,629.
¶6 Choices timely appealed the SURS decision to the Medical Advisory Committee
(MAC) in April 2008. Although Choices representatives and counsel were available on the
day the hearing was held (September 18, 2008),
Choices personnel were not permitted to attend
the MAC hearing. One reason given for excluding Choices participation was an OHCA practice to avoid identifying the provider before
the MAC. Choices also complained it was
unable to present evidence, witnesses, or have
its attorney argue on its behalf.
¶7 The State Medicaid Director issued the
MAC decision by letter on March 31, 2009. The
Medicaid Director outlined seven specific
issues that were addressed in the MAC appeal
including: a) billed services for a behavioral
health specialist whose qualifications were
insufficient at the time services were rendered;
b) failure to have a guardian’s signature on the
mental health service plan of a minor; c) failure
to document the medical record for billed services; d) staff/patient ratio for psychological
rehabilitation services exceeded the minimum
staffing ratio required for the number of
patients billed; e) group counseling sessions
exceeded the maximum number permitted in
the counseling group; f) claims included multiple billing entries with overlapping time
entries for the same patient; and g) service providers failed to adequately document signature
and credentials for services in patient records.
The Medicaid director found the first issue,
objecting to the qualifications of the behavioral
health specialist should be removed, which
reduced the error rate to 18% and reduced the
corresponding overpayment to $53,666.
¶8 From this MAC decision, Choices appealed
to the CEO of the OHCA, Michael Fogarty. In
his decision, Fogarty noted the six matters that
still remained at issue were not sufficiently
countered to warrant any further modification
of the MAC level findings and the $53,666
overpayment remained in place. From the CEO
determination, Choices sought appeal of the
The Oklahoma Bar Journal
1525
agency’s decision to the district court. 63 O.S.
2001 §5052.
bursement, act to change the rate or “vote with
their feet.” Ferguson, 362 F.2d at 59.
¶9 The district court found the agency process did not provide Choices with adequate
due process and also found the agency did not
act within the time constraints set by the agency regulations. The district court order reversed
the OHCA decision, instructed all overpayment funds taken from Choices be refunded
and dismissed all proceedings against Choices
with prejudice. Having reviewed the record,
we reverse the district court order and remand
for further proceedings.
¶13 All providers of medical services operating under the Medicaid program in Oklahoma
are required to have an approved provider
agreement on file with the OHCA in order to
be eligible for Medicaid payments. O.A.C.
§317:30-3-2. Through the agreement, the provider assures it will “compl[y] with all applicable Federal and State regulations.” O.A.C.
§317:30-3-2; Alexander v. Choate, 469 U.S. 287,
290 n.1, 105 S.Ct. 712, 714 n.1, 83 L.Ed.2d 661
(1985) (a state is not required to participate in
Medicaid, but once a state voluntarily chooses
to participate it must comply with statutes and
regulations); See also Pharmcare Oklahoma, Inc. v.
State Health Care Auth., 2006 OK CIV APP 5,
¶12, 152 P.3d 267, 269-70. The SURS audit
appeal format and procedure outlined in
O.A.C. §317:2-1-6, 2-1-7 and 2-1-13 is part of
the regulatory scheme Choices agreed to comply with when it entered into its provider
agreement to perform Medicaid services and
seek Medicaid reimbursement. As a result, like
the pharmaceutical providers in Ferguson,
Choices agreed to provide care within the
Medicaid program and must operate within
the rules or work to change them.
¶10 Appellants first asserted that no constitutional, statutory or regulatory law requires
the OHCA to give Choices a pre-deprivation
evidentiary hearing on the basis of an overpayment determination. In this proposition, OHCA
argued Choices had no property interest in the
overpayments, so that the agency procedure
afforded Choices was adequate. Contra to the
OHCA’s position, Choices argued it held a property interest in the already paid Medicaid funds
and OHCA could not deprive Choices of those
funds without a hearing and an opportunity to
be heard, in keeping with both the fourteenth
amendment of the Constitution and Article 2,
section 7 of the Oklahoma Constitution.
¶11 Providers who serve the Medicaid program make an application in order to serve as
a Medicaid provider. See 42 C.F.R. §455.450.
The program is administered according to an
interrelated web of state and federal statutes,
federal regulations and state agency rules and
regulations. See People v. Kanaan, 751 N.W.2d
57, 68 (Mich.App. 2008); Bruner v. Timberlane
Manor, 2006 OK 90, ¶28 n.17, 155 P.3d 16, 27
n.17. On matters of reimbursement for services,
providers must either follow the rule or get the
rule changed, and if the providers “cannot persuade the Secretary to act — they must vote
with their feet.” Long Term Care Pharmacy Alliance, v. Ferguson, 362 F.3d 50, 59 (1st Cir. 2004).
¶12 In Ferguson, an association of pharmacies
challenged the state’s emergency rule reducing
Medicaid reimbursements for pharmaceuticals.
The Michigan court found that based on the U.S.
Supreme Court’s pronouncement in Gonzaga
University v. Doe, 536 U.S. 273, 283, 122 S.Ct.
2268, 153 L.Ed.2d 309 (2002), the pharmacies did
not have a private right of action under 42 U.S.C.
§ 1396a(a)(30)(A), if the pharmacies believed the
state’s reimbursement was inadequate. The court
found the pharmacies must accept the reim1526
¶14 Oklahoma regulations provided an
appeal grievance process and procedure for
medical care providers, like Choices, who gave
care to Medicaid recipients (patients) under the
act, were audited and sought to appeal the
audit findings of the Surveillance Utilization
and Review System (SURS). O.A.C. §§317:21-6, 2-1-7, and 2-1-13.1 The record reveals the
process outlined in §317 is the process Choices
received after it was audited. But Choices
argues this regulatory scheme was not sufficient for the deprivation of property rights
Choices was subjected to.
¶15 Choices complains its rights were violated in multiple ways, such as when Choices
and its attorney were not permitted to attend
the MAC hearing or allowed to participate at the
hearing. Choices complains it was not allowed
to make an oral presentation, not allowed to
present documentary evidence, not allowed to
present witnesses, not allowed to confront or
cross-examine witnesses, not allowed to counter
other evidence used at hearing, Choices’ name
was redacted from materials used at the hearing,
and Choices claims it was denied a neutral
decision-maker.
The Oklahoma Bar Journal
Vol. 84 — No. 20 — 8/10/2013
¶16 We find nothing in the regulations that
require Choices or its attorney to attend the
hearing or make any kind of oral presentation.
Choices also claims it was not allowed to present documentary evidence, contra to the provision in §317:2-1-7(2), but the record indicates
otherwise, as numerous documents were presented by Choices after the audit, many of
which contributed to the reevaluation of the
error rate and reimbursement. We also find
nothing in the regulations that requires or
gives Choices the right to present, confront or
cross-examine witnesses. Witnesses may be
called at the discretion of the MAC (§317:2-17(5)), but no other provisions allowing for witnesses at the demand of a provider appear in
the rules. Choices also objects to the redaction
of its name from the material used at hearing.
Again, we find nothing in the rule prohibiting
this practice.
¶17 Finally, with regard to a neutral decision
maker, Choices appealed to each level within
the agency as the regulation provided, the
MAC, the State Medicaid director and the CEO
of the OHCA. Choices has cited no specific
examples of bias by these agency personnel,
and has cited no authority entitling Choices
access to alternative agency personnel in the
course of its appeal.
identify the account to which the money is
to be applied. The MMIS system has the
capability of automatic credits and debits.
When an erroneous payment occurs, which
results in an overpayment, an automatic
recoupment will be made to the provider’s
account against monies owed to the provider. For more specific information, refer
to the Oklahoma Medicaid Provider Billing
Manual, Chapter 9: Paid Claim Adjustment
Procedures.
O.A.C. 317: 30-3-12 (2008).2 In this case, OHCA
asserts no funds were taken from Choices
until the finalization of the agency decision.
The record indicates recoupment began prior
to the district court decision in Choices’ favor,
and Choices sought a bond under 75 O.S. 2001
§319 to stay enforcement of the reimbursement. Choices has cited no authority requiring OHCA to wait until conclusion of an
appeal before implementing the recoupment
procedures allowed under §317:30-3-12, and
we have found none. As a result, any claim
Choices has made objecting to the premature
nature of the reimbursement is unsupported
by existing regulation.
¶19 With respect to the issue of deprivation
of claimed reimbursement funds before the
conclusion of all proceedings, the Oklahoma
Administrative Code provides:
¶20 Choices Institute argues it was entitled to
a different process than that which was provided for in §317:2-1-7 and 317:2-1-13, and that
§317 is insufficient to protect Choices’ property
interest in the funds it had already been paid
for services it argues were properly rendered.
The district court’s objective in examining the
procedure followed by the OHCA, SURS and
MAC was to determine if the regulations were
complied with, not to reconfigure or rework
the regulations into something more fair and
comprehensive for the medical care provider.
As in Ferguson, 362 F.3d at 59, if the provider
wishes to object to the fairness of the Medicaid
rule, whether that rule relates to reimbursement rates as it did in Ferguson or whether the
rule relates to the recourse a provider has available to it after facing an audit, the provider
must persuade those with authority to write
and approve the regulations to change them or
“vote with [its] feet.” As a result, the district
court’s determination that Choices’ due process rights were infringed upon is reversed.
When an overpayment has occurred, the
provider should immediately refund the
Oklahoma Health Care Authority, by check,
to the attention of the Finance Division,
P.O. Box 18299, Oklahoma City, OK 73154.
In refunding OHCA, be sure to clearly
¶21 This court’s decision regarding the adequacy of the process accorded Choices is not to
be construed as a determination that the CEO’s
April 30, 2009 decision to uphold the Medicaid
director’s error rate and reimbursement assessment was supported by the record or not. The
¶18 The appeal procedure to the MAC, §317:21-7(2), allowed Choices to include “all relevant”
exhibits Choices believed were necessary to
decide the appeal, an opportunity Choices took
advantage of by including numerous other documents that were not part of the original audit.
Choices also drafted a summary for the MAC of
its position with respect to the audit findings.
The MAC procedure does not outline a mechanism for the Medicaid provider’s in person participation at either the MAC hearing or before
the OHCA CEO, so Choices’ assertion that it had
a right to participate in person is misplaced.
O.A.C. §§317:2-1-7 and 317:2-1-13. We find no
authority in support of this proposition.
Vol. 84 — No. 20 — 8/10/2013
The Oklahoma Bar Journal
1527
district court did not make a determination as
to the adequacy or inadequacy of the evidence
in support of the agency’s findings, instead
reversing the agency’s decision before making
such a determination. Whether the agency
record supports the audit findings is something the court will have to determine upon
remand, as this court will not address the matter for the first time on appeal. Salazar v. City of
Oklahoma City, 1999 OK 20, ¶15 n.17, 976 P.2d
1056, 1062 n.17.
¶22 In addition to the district court finding
Choices’ due process rights were violated, the
order stated “The Appellants rights were also
violated by Appellees failure to follow the
mandatory time periods in the appeal process.”
Section 317:2-1-7 states the MAC subcommittee
will issue a recommendation regarding the
appeal within 30 days of the hearing and the
State Medicaid Director will issue a decision
regarding the appeal within 60 days of the
docket clerk’s receipt of the recommendation
from the MAC. In this case the Medicaid director issued her decision on March 31, 2009, after
the hearing on September 18, 2008, in excess of
the time provided for in the regulation.
¶23 It is unclear how much of the district
court’s order to reverse the agency decision
rested on the due process analysis and how
much rested on the MAC’s failure to observe
the time parameters in §317:2-1-7. The regulation is silent as to what penalty should occur if
the MAC does not meet the 30 or 60 day deadline. This court will not assume the penalty for
failure to meet the deadline is dismissal based
upon this silence. Further, Choices cites no
example of the harm or prejudice inflicted
upon it as a result of the delay, and delay alone
is not ordinarily a reason to dismiss an action.
Boston v. Buchanan, 2003 OK 114, ¶36, 89 P.3d
1034, 1044-45. As a result, to whatever extent
the court based its decision on the MAC’s failure to meet its decision deadline, we reverse
the district court.
¶24 The order of the district court is
REVERSED and this cause REMANDED for
further proceedings.
BUETTNER, P.J., and BELL, J., concur.
1. The appeal regulations relating to Choices claims existed in the
following form in 2007, when Choices was audited. Although the regulations have been amended since, the language from the 2006 versions
(below) of O.A.C. §§317:2-1-6, 317:2-1-7, and 317:2-1-13 remain largely
unchanged with respect to their application in this case:
317:2-1-6 Other Grievance procedures and processes:
1528
Other grievance procedures and processes include those set out in
O.A.C. 317:2-1-7 [Surveillance, Utilization and Review System (SURS)
and Program Integrity Audits/Reviews Appeals]; O.A.C. 317:2-1-8
(Nursing Home Provider Contract Appeals); O.A.C. 317:2-1-9 [OHCA’s
Designated Agent’s Appeal Process for Behavioral Health Services];
O.A.C. 317:2-1-10 (Drug Rebate Appeal Process); O.A.C. 317:2-1-11
[Medicaid Drug Utilization Review Board (DUR) Appeal Process]; and
O.A.C. 317:2-1-12 (For Cause Provider Contract Suspension/Termination Appeals Process).
317:2-1-7 Surveillance Utilization and Review System (SURS) and
Program Integrity Audits/Reviews appeals:
SURS and Program Integrity Audits/Reviews appeals are made to
the State Medicaid Director.
(1) If a provider disagrees with a decision of the Surveillance, Utilization and Review System Unit (SURS) or Program Integrity Audit/
Review which has determined that the provider has received an overpayment, the provider may appeal, within 20 days of the date of that
decision to the State Medicaid Director.
(2) The appeal from the SURS or Program Integrity Audit/Review
decision will be commenced by the receipt of a letter from the appellant provider. The letter must set out with specificity, the overpayment
decision to which the provider objects along with the grounds for
appeal. The letter should explain in detail, the factual and/or legal
basis for disagreement with the allegedly erroneous decision. The letter will also include all relevant exhibits the provider believes necessary to decide the appeal.
(3) Upon the receipt of the appeal by the docket clerk, the matter
will be docketed for the next meeting of the MAC. Any appeal received
less than four weeks before a scheduled MAC meeting will be set for
the following MAC meeting.
(4) The appeal will be forwarded to the SURS unit or Program
Integrity Audit/Review unit by the docket clerk for distribution to the
members of the subcommittee and for preparation of the OHCA’s case.
A subcommittee of the MAC will be formed and render a recommendation to the State Medicaid Director.
(5) At the discretion of the MAC, witnesses may be called and
information may be solicited from any party by letter, telephonic communication, fax, or other means. The subcommittee may request that
members of the Authority be present during their consideration of the
appeal. Members of the Authority’s Legal Division may be asked to
answer legal questions regarding the appeal.
(6) The subcommittee will issue a recommendation regarding the
appeal, in writing, within 30 days of the hearing. An exception to the
30 day rule will apply in cases where the subcommittee sets the case
over until its next scheduled meeting in order to gather additional
evidence. The written recommendation will list the members of the
subcommittee who participated in the decision. In cases where an
appeal must be continued, the subcommittee will issue a letter within
30 days of the initial hearing to inform the appellant of the continuance.
(7) The recommendation, after being formalized, will be sent to the
docket clerk for review by the State Medicaid Director. The State Medicaid Director will issue a decision regarding the appeal within 60 days
of the docket clerk’s receipt of the recommendation from the MAC.
The decision will be issued to the appellant or his/her authorized
agent.
(8) If the provider is dissatisfied with the Medicaid Director’s decision, it may be appealed to the CEO under O.A.C. 317:2-1-13.
317:2-1-13 Appeal to the Chief Executive Officer:
An appeal to the Chief Executive Officer (CEO) of the Oklahoma
Health Care Authority includes:
(1) Within 20 days of decisions made pursuant to provider or
SURS/Program Integrity Audits/Reviews appeals found at this Chapter, either party may appeal a decision to the CEO of the Authority.
Such appeal will be commenced by a letter or fax received by the CEO
within 20 days of the receipt of the prior decision made by the ALJ or
Medicaid Director. The appeal will concisely and fully explain the
reasons for the request. No new evidence may be presented to the
CEO. Evidence presented must be confined to the records below.
(2) Appeals to the CEO under recipient proceedings will be commenced by a letter received no later than 10 days of the receipt of the
decision by the ALJ. Should the appellant request a transcription to
prosecute its appeal to the CEO, the appellant will be required to execute a waiver relieving the OHCA from completing its fair process
hearing within 90 days.
(3) For provider and SURS/Program Integrity Audits/Reviews
proceedings, the CEO will have 90 days from receipt of the appeal to
render a written decision.
(4) For recipient proceedings, the CEO will have 30 days from
receipt of the appeal to render a written decision.
The Oklahoma Bar Journal
Vol. 84 — No. 20 — 8/10/2013
(5) The only appeal for proposed administrative sanctions is before
the ALJ and the ALJ decision is not appealable to the CEO.
2. O.A.C. §317:30-3-12 (2006). Credits and adjustments:
When an overpayment has occurred, the provider should immediately refund the Authority, by check, to the attention of the Finance
Division, P.O. Box 18299, Oklahoma City, OK 73154. In refunding
OHCA, be sure to clearly identify the account to which the money is to
be applied. The MMIS system has the capability of automatic credits
and debits. When an erroneous payment occurs, which results in an
overpayment, an automatic recoupment will be made to the provider’s
account against monies owed to the provider. For more specific information, refer to Subchapter 7, Billing and Inquiries, of this Chapter for
adjustments.
2013 OK CIV APP 72
JOEL RABIN and SHARON HURST,
Plaintiffs/Appellants, vs. BARTLESVILLE
REDEVELOPMENT TRUST AUTHORITY
(“BRTA”), a public trust; WALTER
ALLISON, in his official capacity as Trustee
of the BRTA; JON BACCUS, in his official
capacity as Trustee of the BRTA; RANDY
BLUHM, in his official capacity as Trustee of
the BRTA; SHERRY MUSSELMAN COX, in
her official capacity as Trustee of the BRTA;
TOM GORMAN, in his official capacity as
Trustee of the BRTA; DAVID OAKLEY, JR.,
in his official capacity as Trustee of the
BRTA; and DONNA SKELLY, in her official
capacity as Trustee of the BRTA, Defendants/
Appellees.
Case No. 110,310. June 27, 2013
APPEAL FROM THE DISTRICT COURT OF
WASHINGTON COUNTY, OKLAHOMA
HONORABLE RUSSELL C. VACLAW,
TRIAL JUDGE
REVERSED AND REMANDED
J. Schaad Titus, J. Miles McFadden, TITUS
HILLIS REYNOLDS LOVE DICKMAN &
MCCALMON, P.C., Tulsa, Oklahoma, for
Plaintiffs/Appellants, Joel Rabin and Sharon
Hurst,
Thomas J. Brown, BREWER, WORTEN, ROBINETT, Bartlesville, Oklahoma, and David E.
McMahan, MCMAHAN & VERNON, P.C.,
Altus, Oklahoma, for Defendants/Appellees
JERRY L. GOODMAN, JUDGE:
¶1 Joel Rabin and Sharon Hurst (RabinHurst) appeal the trial court’s order of November 4, 2011, dismissing their action against the
Bartlesville Redevelopment Trust Authority
and its trustees (collectively BRTA) for an
alleged violation of the Oklahoma Open Meeting Act, 25 O.S.2011, §§ 301 through 314
(OOMA). The appeal was originally assigned
to the accelerated docket pursuant to Oklahoma Supreme Court Rule 1.36(a)(1), 12 O.S.2011,
Vol. 84 — No. 20 — 8/10/2013
Ch. 15, App. 1. This Court ordered briefs pursuant to Rule 1.36(g).
¶2 Two issues are presented: 1) whether
Rabin-Hurst have standing to pursue the
OOMA action, and 2) whether the OOMA provides for a private cause of action. Based upon
our review of the facts and applicable law, we
answer both questions in the affirmative and in
doing so reverse the trial court’s order of dismissal and remand for further proceedings.
FACTS
¶3 On August 11, 2010, BRTA held an executive session. Rabin-Hurst are residents of the
Bartlesville, Oklahoma, area and filed suit on
October 21, 2010, alleging that BRTA improperly
entered into executive session at that August
meeting and violated the OOMA. Rabin-Hurst
requested a declaratory judgment declaring all
actions taken at the executive session to be
invalid, and further, a mandatory injunction
requiring BRTA to provide the public all the
minutes and other records from the executive
session pursuant to § 307 (F)(2) of the OOMA.1
¶4 On December 8, 2010, BRTA filed a motion
to dismiss for failure to state a claim for which
relief can be granted pursuant to 12 O.S.2011, §
2012(b)(6). On November 4, 2011, the trial court
granted BRTA’s motion to dismiss for the reason that Rabin-Hurst lacked standing and further, that the OOMA does not provide for a
private right of action for Rabin-Hurst.
¶5 The order granting that motion to dismiss
is now before us. We will first decide whether
Rabin-Hurst have standing to bring an action
against BRTA. Following that determination,
we will decide whether the OOMA provides
for a private right of action. Because the trial
court ruled only on those issues we do not
address the merits of the action itself, nor any
of BRTA’s other possible defenses.
STANDARD OF REVIEW
¶6 The standard of review for an order granting a motion to dismiss for failure to state a
claim upon which relief can be granted is de
novo. Tuffy’s Inc. v. City of Oklahoma City, 2009 OK
4, ¶ 6, 212 P.3d 1158, 1162. When reviewing a
motion to dismiss, the Court must view the facts
as true and favorable to the Plaintiff. Id. The purpose of a motion to dismiss is to determine the
legal sufficiency of the claim, not the underlying
facts. Id. “A pleading must not be dismissed for
failure to state a legally cognizable claim unless
the allegations indicate beyond any doubt that
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the litigant can prove no set of facts which
would entitle the plaintiff to relief.” Id.
ANALYSIS
¶7 As a preliminary matter, neither party
disputes BRTA is subject to the OOMA.
Although set out in several propositions of
error, Rabin-Hurst’s appeal centers on two
issues: 1) whether Rabin-Hurst have standing
to sue; and 2) whether the OOMA implies a
private right of action.
STANDING
¶8 We will first address whether Rabin-Hurst
have standing. In order to have standing, a
party must have a sufficient interest in a justiciable controversy. Oklahoma Educ. Ass’n v.
State ex rel. Oklahoma Legislature, 2007 OK 30, ¶
16, 158 P.3d 1058, 1064. If the party does not
rely on a statute or constitutional provision to
authorize invoking the judicial process, the
court must determine whether the party has
sufficiently “alleged a personal stake in the
outcome of the controversy.” Id. (citing Indep.
Sch. Dist. No. 9 v. Glass, 1982 OK 2, ¶ 8, 639 P.2d
1233, 1237.)
¶9 Rabin-Hurst filed suit against BRTA for
improperly holding an executive session under
the OOMA.2 OOMA states its purpose as follows: “It is the public policy of the State of Oklahoma to encourage and facilitate an informed
citizenry’s understanding of the governmental
processes and governmental problems.” 25 O.S.
2011, § 302. The legislature enacted the OOMA
for the public’s benefit, and “it is to be construed
liberally in favor of the public.” Wilson v. City of
Tecumseh, 2008 OK CIV APP 84, ¶ 10, 194 P.3d
140, 144.
¶10 Because the OOMA was created for the
purpose of governmental transparency by
ensuring governmental bodies hold meetings
that are open to the public, we find that RabinHurst have standing to bring this action. An
executive session, by definition, is closed to the
public. Rabin-Hurst have a personal interest,
indeed a right, as members of the public and
residents of Oklahoma, to attend and know the
content of a public meeting. If BRTA improperly held an executive session, the right of
Rabin-Hurst has been violated, thus thereby
conferring standing to invoke judicial process
to enforce that right.
Private Right of Action Under the OOMA
¶11 As previously mentioned, the second
issue is whether the OOMA provides for a pri1530
vate right of action. The trial court invoked the
analysis set forth in Holbert v. Echeverria, 1987
OK 99, 744 P.2d 960, to find that the OOMA
does not create a private right of action. We
find the trial court misread Holbert and erred.
¶12 The Holbert court provides a three-part
test to determine whether a statute implies a
private right of action:
(1) the plaintiff is one of the class for whose
especial benefit the statute was enacted; (2)
some indication of legislative intent, explicit or implicit, suggests that [the legislature]
wanted to create a private remedy and not
to deny one; [and] (3) implying a remedy
for the plaintiff would be consistent with
the underlying purpose of the legislative
scheme.
Id., 1987 OK 99, ¶ 7, 744 P.2d 960, 963 (citing
Cort v. Ash, 422 U.S. 66, 78).
¶13 Under part one of the test, we must
determine whether Rabin-Hurst are a member
of a special class for whom the statute was
enacted. BRTA claims that the OOMA was
enacted for the benefit of the general public,
therefore, by definition it does not create any
special class for Rabin-Hurst to be a member
of. It further supports this proposition by citing
to Holbert, “[w]hen a statute is created for the
benefit of the public at large, no special class is
created in its wake simply because a remedy
for injured persons is fashioned.” Id., at ¶ 9, at
963. While it is true that the OOMA was created
for the benefit of the public, it does not follow
that the OOMA does not create a special class.
As explained above, the OOMA was specifically
and especially enacted for the benefit of the
public. Unlike the original Act reviewed by
Holbert, the OOMA states its public policy is to
inform the public citizenry.3 Thus, the special
class is the general public, of which RabinHurst are members.
¶14 The second part of the Holbert test is to
determine whether the Oklahoma legislature
intended to create a private right of action.
BRTA argues the criminal penalty set forth in §
314 is the sole remedy for an aggrieved party
and cannot be invoked by a member of the
public. We disagree for two reasons.
¶15 The Oklahoma legislature enacted two
provisions as part of the OOMA which provide
for remedies outside of the criminal penalty
outlined in § 314. Section 307 describes which
and under what circumstances public bodies
may enter into executive sessions. The statute
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Vol. 84 — No. 20 — 8/10/2013
states the remedies for violating this section as
follows:
A willful violation of the provisions of this
section shall: 1. Subject each member of the
public body to criminal sanctions as provided in Section 314 of this title; and 2.
Cause the minutes and all other records of the
executive session, including tape recordings, to
be immediately made public.
25 O.S.2011, § 307(F) (emphasis added). Section
313 provides a remedy for any violation of the
OOMA: “Any action taken in willful violation
of this act shall be invalid.” 25 O.S.2011, § 313.
The criminal penalty of fines and imprisonment is different and apart from forcing minutes to be made public and actions to be made
invalid. Although a district attorney prosecuting a criminal action could invoke those remedies, we find no reason why those remedies
should be invoked strictly within the confines
of a criminal case subject to the prosecutorial
discretion of a district attorney. The general
public, the intended beneficiary of the OOMA,
would not be well served should that narrow
interpretation prevail. The only way to effectively serve the public would be to permit
these remedies to be invoked in a private
action, by a member of the very public the
OOMA was intended to serve. In the case at
bar, Rabin-Hurst have done exactly that. They
are public citizens who have brought an action
against an alleged violator of the OOMA and
seek declaratory and injunctive relief as provided in §§ 307(F) and 313.
¶16 The intent of the legislature in the foregoing regard is reflected in a number of cases
brought by private individuals under the
OOMA wherein Oklahoma appellate courts
have granted injunctive or declaratory relief. In
Lafalier v. Lead-Impacted Communities Relocation
Assistance Trust, 2010 OK 48, ¶ 42, 237 P.3d 181,
197, the Oklahoma Supreme Court found that
a public body violated the OOMA when it held
an executive session with unauthorized people
in attendance. As a result of this violation, the
court remanded the case to the trial court to
determine “whether the violations were willful
such that the minutes and records of the executive sessions should be immediately made
public under title 25, section 307(F)(2).” Id. at ¶
43, at 197.
¶17 Another case invalidating an act taken
by a public body is Okmulgee County Rural Water
Dist. No. 2 v. Beggs Pub. Works Auth., 2009 OK
CIV APP 51, ¶ 18, 211 P.3d 225, 229. In Beggs, the
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public body violated the OOMA when it failed
to post proper notice of a meeting it held as
required in § 303. Id. Due to the violation, the
Court of Civil Appeals held the actions executed
at the meeting were invalid. Id.
¶18 In a case similar to Beggs, the Court of
Civil Appeals invalidated an action due to a
violation of the OOMA. In Haworth Board of
Education of Independent School District No. I-6,
McCurtain County v. Havens, 1981 OK CIV APP
56, 637 P.2d 902, the public body, the Haworth
School Board, held a meeting and approved
the superintendant’s employment contract.
The Haworth School Board succeeding the
Board that hired the superintendent alleged
the superintendent’s contract was void due to
the lack of proper notice of the original meeting when the contract was approved. Id. at ¶¶
1-2, at 903. The court found that the public
notice was “deceptively vague and ambiguous,” in violation of the OOMA. Id. at ¶14, at
904. Due to the violation, the court held that
the contract was nullified pursuant to § 313 of
the OOMA. Id. at ¶¶ 4, 14, at 903-04.
¶19 Lafalier, Beggs, and Haworth are three
Oklahoma cases which have found a violation
of the OOMA and used §§307 (F) and 313 to
remediate the violation. Had the legislature not
intended for citizens to bring suit under the
OOMA nor for civil courts to enforce §§ 307 (F)
and 313, it could have amended the OOMA to
disallow such causes of action. Failure to do so
indicates the intent of the legislature to allow
private actions to be brought to remediate the
violation.
¶20 The third prong of the Holbert analysis
requires us to determine whether implying a
remedy for Rabin-Hurst would be consistent
with the underlying purpose of and policy of
the OOMA. To reiterate: the public policy of
the OOMA is to educate and inform the public
on governmental processes. The court in
Haworth further described the purpose of the
OOMA as follows:
One purpose . . . was to maintain the faith
of the public in government agencies.
Regardless of their good intentions, the
specific boards and commissions, through
devious ways, should not be allowed to
deprive the public of its inalienable right to
be present and heard at all deliberations
wherein decisions affecting the public are
being made.
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Haworth, 1981 OK CIV APP at ¶ 9, 637 P.2d at
904 (citations omitted). As the underlying purpose of the OOMA is, at its very core, to maintain governmental transparency through open
meetings, the remedies provided for in the statute, and requested by Rabin-Hurst, logically
uphold the purpose of the OOMA.
¶21 Further, the courts of this state have
noted the importance of the OOMA and the
need to uphold it (see Wilson, supra, at ¶ 10,
stating the OOMA “is to be construed liberally
in favor of the public”; In the Matter of the
Appeal of the Order Declaring the Annexation
Dated June 28, 1978, 1981 OK CIV APP 57, ¶ 31,
637 P.2d 1270, 1275, “without vigorous enforcement [of the OOMA] in the courts, laudable
legislation is reduced to ‘mere words’”).
¶22 The two remedies in dispute are to make
the minutes of the alleged improperly held
executive session made public, and to invalidate any actions taken at the executive session.
BRTA argues the appropriate remedy for any
wrong is to initiate a criminal action against the
violators. Suffice it to say, a criminal action subject only to prosecutorial discretion of a district
attorney is likely to result only in a fine, and
does not “right the wrong” of an OOMA violation. Whereas, making public the minutes of an
improperly-held executive session and invalidating actions taken at same does “right the
wrong” of the violation. If the wrong is keeping secret information that should be publicly
known, then the logical remedy is to disclose
the secret to the public. Such remedies are
meaningful and vigorously uphold the purpose of the OOMA.
¶23 Accordingly, we find the trial court erred
in dismissing the action for failure to state a
claim upon which relief may be granted. We find
Rabin-Hurst have standing to bring suit under
the OOMA and it provides them with a cause of
action to enforce their rights. The trial court’s
dismissal is reversed, and is remanded for further proceedings consistent with this opinion.
¶24 REVERSED AND REMANDED.
THORNBRUGH, P.J., and RAPP, J., concur.
1. That subsection states:
F. A willful violation of the provisions of this section shall:
1. Subject each member of the public body to criminal sanctions
as provided in Section 314 of this title; and
2. Cause the minutes and all other records of the executive session, including tape recordings, to be immediately made public.
2. The relevant portion of the OOMA defining when an executive
session may be held are: “Executive sessions of public bodies will be
only permitted for the purpose of: . . . 4. Confidential communications
between a public body and its attorney concerning a pending investigation, claim, or action if the public body, with the advice of its attor-
1532
ney, determines that disclosure will seriously impair the ability of the
public body to process the claim or conduct a pending investigation,
litigation, or proceeding in the public interest.” § 307(B)(4).
3. Holbert held the original 1972 version of the Oklahoma Consumer Protection Act, 15 O.S.2011, §§ 751, et seq., provided no private
right of action. That Act was amended in 1988 to include such a right.
2013 OK CIV APP 73
TYLER VOLKL, Plaintiff/Appellant, vs.
MICHAEL THOMAS BYFORD, Defendant/
Appellee, and LESLI BYFORD, Defendant.
Case No. 110,772. June 19, 2013
APPEAL FROM THE DISTRICT COURT OF
TULSA COUNTY, OKLAHOMA
HONORABLE DANA L. KUEHN,
TRIAL JUDGE
REVERSED
Donald E. Smolen, II, SMOLEN, SMOLEN &
ROYTMAN, PLLC, Tulsa, Oklahoma, for Plaintiff/Appellant
A. Mark Smiling, SMILING & MILLER, P.A.,
Tulsa, Oklahoma, for Defendant/Appellee
P. THOMAS THORNBRUGH, PRESIDING
JUDGE:
¶1 Plaintiff Tyler Volkl appeals the district
court’s order dismissing his auto negligence
suit against Michael Thomas Byford because
the statute of limitations period had expired.
On review, we find the relation back doctrine is
applicable in this case, and reverse the district
court’s decision.
BACKGROUND
¶2 On July 6, 2009, a vehicle driven by Volkl
collided with a vehicle driven by defendant
Michael Byford. On June 28, 2011, Volkl filed
suit in Creek County Case No. CJ-2011-305.
Volkl’s petition incorrectly named the owner of
the vehicle, Byford’s mother Lesli Byford, as
the driver. On July 20, 2011, Volkl filed an
amended petition in Creek County, correctly
naming Michael Byford as the driver, and stating a negligent entrustment claim against Lesli
Byford. Volkl voluntarily dismissed the Creek
County case, and refilled his petition in Tulsa
County, Case No. CJ-2011-4641, on August 19,
2011. Michael Byford answered with a motion
to dismiss on statute of limitations grounds,
arguing that he was sued beyond the two-year
statute of limitations provided by 12 O.S.2011 §
95(3). Volkl argued that the claims against
Michael Byford related back to his original
petition, which was filed within the statute of
limitations.
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Vol. 84 — No. 20 — 8/10/2013
¶3 On December 7, 2011, the district court
granted Michael Byford’s motion to dismiss by
minute order. On December 9, the court issued
a journal entry to that effect and, on May 9,
2012, issued an order certifying this matter for
appeal.
STANDARD OF REVIEW
¶4 “A statute-of-limitations issue ordinarily
presents a mixed question of fact and law.” Sneed
v. McDonnell Douglas, 1999 OK 84, ¶ 9, 991 P.2d
1001, 1004. However, this matter was presented
as a motion to dismiss, and the standard of
review before the court is de novo. Hayes v. Eateries, Inc., 1995 OK 108, ¶ 2, 905 P.2d 778, 780.
ANALYSIS
¶5 Volkl’s July 20, 2011 and August 19, 2011
petitions against Michael Byford were filed outside the applicable statute of limitations. His
June 28, 2011 petition against Lesli Byford was
filed within the applicable statute of limitations.
Therefore, Volkl must rely on the relation back
doctrine to bring his petition against Michael
Byford within the statute of limitations.
¶6 Oklahoma’s relation back doctrine, adapted from Rule 15(c) of the Federal Rules of Civil
Procedure “is remedial and promotes the general purpose of the federal rules by ‘providing
the opportunity for a claim to be tried on its
merits rather than being dismissed on procedural technicalities, when the policy behind
the statute of limitations has been addressed.’”
Pan v. Bane, 2006 OK 57, ¶ 9, 141 P.3d 555, 559
(quoting 3 Moore’s Federal Practice, § 15.19[3]
[a](3d ed. at 15-84)).
¶7 “Three requirements must be met in order
for an amendment adding a new party to relate
back to the original filing of the action.” Id. at ¶
10, 141 P.3d at 559. The first requirement — that
the same transaction is involved — is satisfied
in this case.
¶8 “The second requirement is that the party
to be added must have received timely notice
and will not be prejudiced in maintaining a
defense.” Id. We find no failure in notice, or
apparent prejudice in this case.
¶9 “The third requirement is that the party to
be added, within the specified time period,
knew or should have known that but for the
mistake of identity the action would have been
brought against him or her.” Id. “If the party to
be added has a sufficient identity of interest
with the original defendant, constructive notice
Vol. 84 — No. 20 — 8/10/2013
will be imputed to the former, thereby satisfying the notice requirement for relation back
where it will not be prejudicial.” Id. at ¶ 12, 141
P.3d at 560. “Imputing notice in this method is
widely accepted by the courts and is based on
the idea that an identity of interest exists where
the original party and the new party are so
closely related in their business operations or
other activities that the institution of an action
against one serves to provide notice of the litigation to the other.” Id. (citing 6A Wright,
Miller & Kane, Federal Practice and Procedure,
Civil 2d § 1499; and 3 Moore’s Federal Practice,
§ 15.19[3][c](3d ed.)).
¶10 The facts in this case are very similar to
those in Pan v. Bane. In that case, Lacey Bane
was driving her parents’ automobile at the
time of the collision. Pan filed a negligence
action against parents Mark and Marta Bane,
alleging the Banes had negligently operated
the vehicle and caused the collision. The petition omitted Lacey as a defendant. The Pan
Court noted that representation of the newly
added defendant by the same attorney representing the existing defendant has been recognized as an identity of interest sufficient to
impute notice to the added defendant, and that
identity of interest has also been found sufficient to allow imputation of notice where the
original and added defendants have the same
insurer. Pan at ¶¶ 18-19, 141 P.3d at 562. Both of
those factors are present here.
¶11 Michael Byford argued that he did not
receive constructive notice, and that he had no
actual notice because he had no reason to
believe the suit was targeted against him.
However, the constructive notice factors in this
case appear the same as those in Pan. Michael
Byford’s basis for claiming that he did not
understand that suit should have been brought
against him was that the amended petition
naming him was “amended to a negligent
entrustment action [and] he had not entrusted
anything to anyone . . . .” This is a mischaracterization of the amended petition, which
clearly states a negligence claim against Michael
Byford and a negligent entrustment claim
against Lesli Byford. We find no merit in this
argument.
CONCLUSION
¶12 We find the three required elements of the
relation back doctrine — the same transaction;
timely notice without prejudice; and sufficient
identity with the original defendant — were
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shown in this case. Therefore Volkl’s claims
against Michael Byford relate back to his June
28, 2011 petition, and were timely made. The
judgment of the district court is therefore
reversed.
¶13 REVERSED.
GOODMAN, J., and RAPP, J., concur.
2013 OK CIV APP 74
CEDAR CREEK I, IMPROVEMENT
ASSOCIATION, Plaintiff/Appellant, vs.
ROBERT J. SMITH and LORA SMITH,
Defendants/Appellees.
Case No. 110,795. June 19, 2013
APPEAL FROM THE DISTRICT COURT OF
LOGAN COUNTY, OKLAHOMA
HONORABLE R.L. HERT, JR., TRIAL JUDGE
AFFIRMED
Matthew L. Winton, WINTON LAW, Edmond,
Oklahoma, for Plaintiff/Appellant
Jeffrey S. Coe, Oklahoma City, Oklahoma, for
Defendants/Appellees
KEITH RAPP, JUDGE:
¶1 The trial court plaintiff, Cedar Creek I,
Improvement Association (Cedar Creek), appeals the Small Claims trial court’s judgment
denying its claim against the defendants, Robert J. Smith and Lora Smith (collectively
Smiths), for a special charge or assessment to
pay for a public street repair.1 In addition,
Cedar Creek appeals the limitation of the
attorney fee awarded to it by the trial court for
collection of unpaid annual dues.
BACKGROUND
¶2 This is an appeal from a decision in Small
Claims court. The record evidence is supplied
by an approved Narrative Statement of the
agreed facts and exhibits.2 Cedar Creek I is a
duly platted subdivision in Logan County. The
subdivision is not situated within the limits of
any city or town. The subdivision plat establishes and dedicates rights-of-way and public
streets, which come under the jurisdiction of
Logan County. As part of the development process, the developer established a property
owners’ association.3
¶3 The developer prepared and filed of
record an Owner’s Certificate and Restrictions
for Cedar Creek I (Restrictions). One provision
1534
in the Restrictions refers to a homeowners’ association and its purpose.4 This statement of
purpose for the association provides:
For the purpose of maintaining general
planting within the roadway areas, and all
common community services of every
kind and nature required or desired within the subdivision for the general use and
benefit of all owners, each and every lot
owner, in accepting a deed or contract for
any lot in such premises agrees to and
shall become a member of and be subject
to the obligations and duly enacted ByLaws and rules of the Cedar Creek I,
Improvement Association, an organization composed of each lot owner(s).
(Provision is made for meetings and organization.) Said By-Laws and/or rules
shall be enforceable as any contractual
obligation.
¶4 The Record includes the Cedar Creek ByLaws.5 The By-Laws provide for officers and an
executive committee. The executive committee
carries out the plans and functions of Cedar
Creek, but is limited to annual expenditures of
$3,500.00, without previous authority from a
majority vote of members present at a membership meeting. The By-Laws provide that the
purpose of Cedar Creek is:
The purpose of the Association to maintain general planting within the roadway
areas, and all common community services
of every kind and nature required or
desired within the subdivision for the general use and benefit of all lot owners.
¶5 Apparently, a street in the subdivision
had fallen into disrepair. The county had not
undertaken to maintain or repair this street or
other streets in the subdivision. On September
25, 2011, at a special meeting of the Cedar
Creek membership, the members present voted
in favor of an executive committee proposal, as
follows:6
That a one-time charge of $2,000.00 be
assessed to each family in Cedar Creek I to
be paid over to the Treasurer no later than
October 15, 2011 to fund a road repair project to be undertaken no later than the end
of October, 2011. These funds along with
approximately $20,000.00 which we currently have in the treasury will be used to
fund this project.
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Vol. 84 — No. 20 — 8/10/2013
¶6 The Smiths are homeowners in Cedar
Creek I subdivision and members of Cedar
Creek. Annual dues are assessed at $250.00.
Until this dispute arose, the Smiths were current on their annual dues. However, the Smiths
refused to pay the $2,000.00, and also then
became delinquent with their annual dues for
two years in the sum of $500.00.
¶7 Cedar Creek filed suit in Small Claims
court for both sums. The Smiths agreed that
they owed the dues, but contested the $2,000.00
charge. The parties presented the case on the
foregoing agreed facts and exhibits.
¶8 The trial court awarded Cedar Creek
judgment for the $500.00 dues, plus an attorney fee of ten percent.7 Cedar Creek claims that
the trial court erred in the fee award.
¶9 The trial court denied recovery for the
$2,000.00 charge or assessment. The trial court
found that there was no authority by statute,
the restrictive covenants, or in any of the Cedar
Creek governing documents whereby Cedar
Creek could impose a special assessment for
improving public property, here a public road.8
Therefore, the charge was unauthorized.
¶10 Cedar Creek appeals. In addition to the
attorney fee issue, Cedar Creek first maintains
that the trial court erred by ruling that the
Cedar Creek governing documents fail to create a contractual obligation to pay assessments
adopted by the owners as members of Cedar
Creek. Next, Cedar Creek argues that the trial
court erred by ruling that Cedar Creek funds
could not be collected and used for the purpose
of improving public property.
STANDARD OF REVIEW
¶11 Where the facts are not disputed an appeal
presents only a question of law. Baptist Building
Corp. v. Barnes, 1994 OK CIV APP 71, ¶ 5, 874
P.2d 68, 69. The appellate court has the plenary,
independent, and nondeferential authority to
reexamine a trial court’s legal rulings. Neil Acquisition, L.L.C. v. Wingrod Investment Corp., 1996
OK 125, 932 P.2d 1100 n.1.
ANALYSIS AND REVIEW
¶12 There is no dispute that: (1) road repairs
are needed; (2) the road is a county public road
by virtue of plat dedication; (3) the county
commissioners have not made the repairs; and
(4) Cedar Creek intended to contract directly
with a private contractor to perform the repairs.
The Record does not show any formal demand
Vol. 84 — No. 20 — 8/10/2013
on the county commissioners to perform the
repairs or maintenance or any legal action
against the county commissioners to compel
performance.9 The Cedar Creek fund was not
in the form of a donation to the County.
¶13 Cedar Creek begins with the proposition
that the Oklahoma Real Estate Development
Act (REDA), 60 O.S.2011, § 851 and following,
authorizes formation of owner associations
with power to do what Cedar Creek did here
regarding the $2,000.00 charge or assessment.
Next, Cedar Creek interprets its By-Laws and
maintains that the By-Laws include the power
to make charges for public street repairs.10
¶14 REDA does authorize formation of property owners’ associations and provides for
enforcement of restrictions and covenants. However, it does not follow that authority is also
given to make a charge, or assessment, to repair
public roads. The plain language of Section
852(A)(1) applies the purpose of the association to the commonly owned property and Section 852(A)(2) applies to the enforcement of
mutual interests and restriction as to separately
owned lots or parcels in the subdivision.11
¶15 Here, the issue involves a dedicated public street. As such, the street is not common or
separately owned property in the subdivision.12
Therefore, Section 852 does not authorize formation of an owners’ association with the
power to make a charge or assessment for repair of a public road.
¶16 Moreover, Section 852(B) requires that
the governing document “shall set forth in
detail the nature of the obligations of the
members.”13 The Restrictions and the By-Laws
do not set out in detail that its members have
any responsibility for repair of public roads
and may be charged or assessed a sum of
money to repair a public road. In addition,
these documents make provision only for collection of annual dues. Neither document
makes provisions for assessments or charges.
¶17 The board of county commissioners has
exclusive jurisdiction to maintain the county
public roads. 69 O.S.2011, § 601; see Okla. Attorney General Opinions, 2011 AG 23 and 2003 AG
10.14 Section 601 permits the board of county
commissioners to accept donations or authorize formation of a rural road improvement
district, but all aspects of maintenance and
repair of county roads fall under the jurisdiction of the board of county commissioners.
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1535
¶18 Therefore, the trial court did not err by
denying the claim for the special charge or
assessment.
¶19 Next, the trial court awarded an attorney
fee of $50.00 on the dues claim because the
Smiths did not contest the claim for annual
dues in the sum of $500.00. This ruling was in
accord with the attorney fee limitation in the
Small Claims statute, 12 O.S.2011, § 1751(C).
Clearly, the claim for dues and the claim for the
special charge for street repair are independent
claims, so the fact that the Smiths contested the
special charge does not make the dues claim a
contested matter.
covenants and restrictions. Therefore, Section
856 does not apply.
¶24 Cedar Creek cited Goss v. Mitchell, 2011
OK CIV APP 74, 259 P.3d 886. Goss is distinguished because that case was an action by
property owners against a property owner to
enforce a covenant or restriction. Likewise, Cebuhar v. Bovaird, 2003 OK CIV APP 19, 67 P.3d 348,
was an action by a property owner against other
property owners to enforce restrictions.
¶25 Therefore, the trial court did not err in its
judgment and the judgment is affirmed.
SUMMARY
¶20 Cedar Creek argues here that a separate
authorization for attorney fees exists because
the dispute involves real property covenants.
Cedar Creek relies upon 60 O.S.2011, §§ 854,
856. Section 854 authorizes a homeowner’s
association to enforce covenants and restrictions in the real estate development when
specified by the covenants and restrictions.
Section 856 authorizes an attorney fee for the
prevailing party in an action by a property
owner against another property owner to
enforce covenants and restrictions.
¶26 Cedar Creek, an unincorporated homeowners association, sued Smiths in Small Claims
court to recover a special charge or assessment
for the purpose of payment for repairs to a
dedicated public county road in the Cedar
Creek I subdivision. The statutes, Plat Restrictions and Cedar Creek By-Laws do not authorize such a special charge or assessment. In
addition, the county board of commissioners
has the exclusive authority and jurisdiction to
repair and maintain the county roads. Therefore, the trial court correctly denied the claim.
¶21 The relevant instruments are the plat
Restrictions and the Cedar Creek By-Laws. The
“Right to Enforce” restrictions article in the
Restrictions does not include the homeowners
association. The “Homeowner’s Association”
article in the Restrictions does not specify that
Cedar Creek may enforce covenants and restrictions. The Cedar Creek By-Laws do not specifically authorize the enforcement of covenants
and restrictions.
¶27 Cedar Creek also sued to recover homeowner dues of $500.00 from Smiths. Smiths
did not contest the claim. The trial court correctly limited the attorney fee to ten percent
of the claim, $50.00, pursuant to 12 O.S.2011,
§ 1715(C).
¶22 Nevertheless, if the statement of purpose
language is somehow construed to permit Cedar Creek to enforce covenants and restrictions, the attorney fee provision in Section 856
does not apply to Cedar Creek or to the facts of
this case. The Oklahoma Supreme Court has
consistently ruled that in Oklahoma strict adherence to the American Rule as to the recovery of
attorney fees in litigation remains the law. Fulsom v. Fulsom, 2003 OK 96, ¶ 8, 81 P.3d 652, 655.
Thus, there must be a specific statute or contract
allowing for recovery. Statutes are strictly construed and the authorization under a particular
statute “must be found within the strict confines
of the involved statute.” Id.
¶23 Cedar Creek is not a property owner that
is suing another property owner to enforce
1536
¶28 The judgment is affirmed.
¶29 AFFIRMED.
THORNBRUGH, P.J., and GOODMAN, J.,
concur.
1. In its reply brief, Cedar Creek takes issue with the term “special
assessment” to identify the $2,000.00 charge. The proposal voted upon
by the Cedar Creek members describes it as “a charge of $2000.00” to
be “assessed” and the narrative statement drafted by Cedar Creek
counsel identifies it as a special assessment.
2. Record, p. 66 and following.
3. No party claims that any of the governing documents suffer
from ambiguity.
4. Record, p. 27 at 33.
5. There is no showing that Cedar Creek is other than an unincorporated association. The Record contains two sets of By-Laws. The By-Laws
dated September 25, 2011 apply. Ex. 3 to Narrative Statement.
6. Cedar Creek officials provided notice and newsletter information concerning the special meeting and its purpose.
7. In Small Claims court, where the claim is uncontested the attorney fee shall not exceed ten percent of the judgment. 12 O.S.2011, §
1751(C).
8. Roads may also be dedicated as public roads pursuant to statutory procedures. Boards of county commissioners are responsible for
county highways and public roads of their respective counties. Smiths
have not asserted that the proposed street repairs will fail to meet any
applicable standards.
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Vol. 84 — No. 20 — 8/10/2013
9. The homeowners apparently have not attempted to form a Rural
Road Improvement District, pursuant to 19 O.S.2011, § 902.1 and following. This Court notes that formation of such a District does not
relieve the county commissioners of their road maintenance responsibility. 19 O.S.2011, § 902.18. Section 902.18 reiterates the county commissioners’ obligation to maintain the county roads. Section 902.18
provides:
Nothing in this act shall be deemed to exclude a county from
supervision and control of the county roads in a district or to
relieve the county from any duty or obligation to improve and
maintain such county roads. The authority and powers of such
districts shall be in addition to those of the counties and shall be
carried out in cooperation with such counties
10. Section 852(A) and (B) read as follows:
A. An “owners association” may be formed by the owner or
owners of real estate development for the purpose of:
1. providing management, maintenance, preservation and
control of commonly owned areas or any portion of or interest in
them, and/or
2. enforcing all mutual, common or reciprocal interests in or
restrictions upon all or portions of such separately owned lots,
parcels, or areas, or both.
B. An owners association shall be formed by the execution of
an instrument signed and acknowledged by all owners of the
real property included. Such instrument shall set forth in detail
the nature of the obligations of the members and shall be filed of
record in the office of the county clerk of the county wherein the
real property is located. The instrument shall include a description of said real property.
11. Unless a contrary intention plainly appears, words used in any
statute are to be understood in their ordinary sense. 25 O.S.2011, § 1;
Cave Springs Public School Dist. I 30, of Adair County v. Blair, 1980 OK
103, ¶ 4, 613 P.2d 1046, 1048. “Where the language of a statute is plain
and unambiguous, and its meaning clear and unmistakable, there is no
room for construction, and the courts are not permitted to search for its
meaning beyond the statute itself.” Jenkins v. Frederick, 1952 OK 456, ¶
13, 257 P.2d 1058, 1061 [citing In re Martin’s Estate, 1938 OK 322, 80 P.2d
561 (Syl. 1)].
12. Compare the facts of The Oaks Owners’ Ass’n, Inc. v. Keim, 2004
OK CIV APP 63, 96 P.3d 1200, where planning commission required
that the area designed for flood and drainage be owned and maintained by the subdivision property owners association.
13. Cedar Creek cites to the Oklahoma General Corporation Act
codified in Title 18 of the Oklahoma Statutes, for its contention that the
Act provides for expansive powers for Cedar Creek. However, the
Record shows that Cedar Creek is an association. The Record does not
show that Cedar Creek was incorporated either as a business corporation or otherwise. Therefore, the contention that the Act enlarges the
powers and purposes of Cedar Creek must be rejected.
14. Section 601 provides:
A. The county highway system shall be composed of all public
roads within any county, less any part of any road or roads which
may be designated as a state highway by the State Transportation Commission. It shall be the duty of the board of county commissioners in each county to construct and maintain as county highways
those roads which best serve the most people of the county. For this
purpose the board of county commissioners is authorized to use any
funds which are in the county highway fund, subject to statutory
restrictions on the use of any of such funds, together with any money
or item of value derived from any agreement entered into between the
county and the Transportation Commission, the federal government,
this state, any other county or political subdivision of this state or other
governmental entity, or any citizen or group of citizens who have made
donations for that purpose. The boards of county commissioners of
the various counties shall have exclusive jurisdiction over the
designation, construction and maintenance and repair of all of
the county highways and bridges therein. All interlocal cooperation agreements made pursuant to this section between counties
and those political subdivisions or citizens of a county shall be
submitted to the district attorney of each of the counties subject
to the agreement for approval. All other interlocal cooperation
agreements shall be submitted and approved in accordance with
Sections 1001 through 1008 of Title 74 of the Oklahoma Statutes.
B. The boards of county commissioners are hereby authorized to establish road improvement d istricts as provided by law
for existing roads in the unincorporated areas of counties. The
boards of county commissioners may also have improvements
made on existing roads in unincorporated areas of counties on a
force account basis. (Emphasis added).
Federal Law Clerk Vacancy
United States District Court
Western District of Oklahoma
Applications are now being accepted for the position of a career law clerk to United
States Magistrate Judge elect Charles B. Goodwin. The law clerk provides legal research
and writing assistance to the judge, including with the drafting of orders and opinions.
Applicants must be a law school graduate with bar membership, and possess excellent
research, writing, proofreading, and communication skills. Applications will be accepted
through August 15, 2013. For full employment notice and application instructions, go to
www.okwd.uscourts.gov.
Vacancy No. D-13-04
United States District Court
United States Courthouse
200 N.W. 4th Street, Rm 1210
Oklahoma City, OK 73102
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Disposition of Cases
Other Than by Published Opinion
COURT OF CRIMINAL APPEALS
Wednesday, July 24, 2013
C-2012-966 — Robert Anthony Burcum, Petitioner, entered a guilty plea to Count 1 - Escape
from Arrest or Detention, After Former Conviction of Two or More Felonies; Count 2 Driving a Motor Vehicle While Under the
Influence of Alcohol, After Former Conviction
of Two or More Felonies; Count 3 - Unlawful
Possession of a Controlled Dangerous Substance, After Former Conviction of Two or
More Felonies; Count 4 – Transporting an
Open Container of Beer, a misdemeanor; Count
5 – Driving with License Cancelled/ Suspended/Revoked, a misdemeanor; and Count 6,
Obstructing an Officer, a misdemeanor, in Case
No. CF-2012-76 in the District Court of Okmulgee County. The Honorable H. Michael Claver,
District Judge, accepted Burcum’s plea and
sentenced him to ten years imprisonment on
each of Counts 1 and 3, one year in the county
jail on each of Counts 2 and 5, a fine of $50.00
on Count 4, and ninety days in the county jail
on Count 6. Burcum filed a timely Motion to
Withdraw Plea that was denied by the District
Court. He appeals the order denying his motion
and petitions this Court for a Writ of Certiorari.
The Petition for Writ of Certiorari is DENIED.
The Judgment and Sentence of the District
Court is AFFIRMED. Opinion by A. Johnson, J.;
Lewis, P.J., concurs; Smith, V.P.J., concurs;
Lumpkin, J., concurs in results; C. Johnson, J.,
concurs.
F-2012-172 — Mark Wallace Williams, Appellant, was tried by jury for the crime of Attempted Burglary in the First Degree, After Former
Conviction of a Felony (Count 1), Possession of
Controlled Dangerous Substance AFCF (Count
2), Possession of Material with Intent to Manufacture AFCF (Count 3), Unlawful Possession
of Drug Paraphernalia in Case No. CF-2008-115
in the District Court of Rogers County. The jury
returned a verdict of guilty and recommended
as punishment 14 years on Count 1, 20 years on
Count 2, Life on Count 3, one year in county
jail on Count 4 and one year in county jail on
Count 5, with all counts to be run concurrently.
The trial court sentenced accordingly. From
this judgment and sentence Mark Wallace Wil1540
liams has perfected his appeal. Convictions on
all counts AFFIRMED; Sentences on Counts 2,
3, 4, and 5 AFFIRMED; Sentence on Count 1
MODIFIED to imprisonment for 10 years.
Motion to Supplement the Appellate Record
and Request for an Evidentiary Hearing
DENIED. Opinion by: Smith, V.P.J.; Lewis, P.J.,
Concur; Lumpkin, J., Concur in Result; C.
Johnson, J., Concur; A. Johnson, J., Concur.
Thursday, July 25, 2013
RE-2012-360 — Kendrick Leon Jackson,
Appellant, appeals from the revocation in full
of his six year and six month suspended sentence in Case No. CF-2010-561 in the District
Court of Carter County, by the Honorable Lee
Card, Associate District Judge. On April 6,
2011, Appellant entered a plea of guilty to
Unlawful Distribution of Controlled Dangerous Substance – Methamphetamine, and was
convicted and sentenced to a term of seven
years, with all except the first six months suspended. On October 7, 2012, the State filed an
application to revoke Appellant’s suspended
sentence alleging he violated probation by
committing the crimes charged in Carter County District Court Case Nos. CF-2011-491,
CM-2011-700, CM-2011-898, and CM-2011-929.
On February 9 and 28, 2012, Judge Card heard
evidence and arguments and found Appellant
had violated probation as alleged. On April 11,
2012, Judge Card revoked in full Appellant’s
six year and six month suspended sentence.
AFFIRMED. Opinion by: Lumpkin, J.; Lewis,
P.J.: Concur; Smith, V.P.J.: Concur; C. Johnson,
J.: Concur; A. Johnson, J.: Concur.
RE-2012-581 — Terry Nathan Hindman,
Appellant, appeals from the revocation of the
balance of his ten year suspended sentences in
Case No. CF-2007-472 in the District Court of
Rogers County, by the Honorable Sheila A.
Condren, Associate District Judge. On September 24, 2009, Appellant entered a plea of guilty
to Count 1: Possession of Controlled Substance
(AFCF), and Count 2: Driving a Motor Vehicle
While Under the Influence of Alcohol. He was
sentenced to a term of ten years on Count 1 and
one year on Count 2, with the sentences ordered
to run concurrently and suspended except for
the first ten weekends in Avalon. On June 6,
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Vol. 84 — No. 20 — 8/10/2013
2012, the State filed a second motion to revoke
Appellant’s suspended sentences alleging he
violated probation as shown in a September 3,
2010, Violation Report, and in a December 15,
2011, Supplemental Violation Report. On June
18, 2012, the revocation hearing was held before
Judge Condren. After hearing the evidence and
arguments, Judge Condren revoked the balance
of Appellant’s ten year suspended sentences.
AFFIRMED. Opinion by: C. Johnson, J.; Lewis,
P.J., Concurs; Smith, V.P.J., Concurs; Lumpkin, J.,
Concurs; A. Johnson, J., Concurs.
F-2012-211 — Appellant, Sammy Lynn Key,
was tried by jury and convicted of Trafficking
in Methamphetamine (Count I), After Former
Conviction of Two or more Violations of the
Uniform Controlled Dangerous Substances
Act, Unlawful Possession of a Firearm After
Former Felony Conviction (Count II), After
Former Conviction of Two or More Felonies,
and Possession of Drug Paraphernalia (Count
III), in the District Court of Bryan County, Case
Number CF-2011-175. The jury recommended
as punishment imprisonment for Life Without
the Possibility of Parole and a fine in the amount
of $25,000.00 in Count I; imprisonment for three
(3) years in Count II; and incarceration in the
county jail for one (1) year and a fine in the
amount of $1,000.00 in Count III. The trial court
sentenced accordingly, ordered the sentences to
run concurrently, and suspended payment of the
fines in full. It is from this judgment and sentence that Appellant appeals. AFFIRMED. Opinion by: Lumpkin, J.; Lewis, P.J., concur; Smith,
V.P.J., concur in result; C. Johnson, J., concur in
result; A. Johnson, J., concur.
F-2012-329 — Edwin Donald Jones, Jr., Appellant, was tried by jury for the crime of Murder
in the First Degree in Case No. CF-2011-58 in
the District Court of Tulsa County. The jury
returned a verdict of guilty and recommended
as punishment life imprisonment. The trial
court sentenced accordingly. From this judgment and sentence Edwin Donald Jones, Jr. has
perfected his appeal. The Judgment and Sentence of the District Court is AFFIRMED. Opinion by: A. Johnson, J.; Lewis, P.J., concurs;
Smith, V.P.J., concurs; Lumpkin, J., concurs; C.
Johnson, J., concurs.
Friday, July 26, 2013
S-2012-834 — Jeffrey Porras was charged in a
Third Amended Information with five counts
of sexual battery, one count of rape in the second degree by instrumentation and one count
of engaging in a pattern of criminal offenses in
Vol. 84 — No. 20 — 8/10/2013
two counties in the District Court of Cleveland
County, Case No. CF-2008-358. The State of
Oklahoma, Appellant, appeals an order entered
by Judge Lori M. Walkley on September 6,
2012, granting Appellee Jeffrey Ariel Porras’
motion to dismiss Counts 4, 5, 6, and 7. The
Order of the District Court granting Porras’
motion to dismiss is AFFIRMED. Opinion by:
A. Johnson, J.; Lewis, P.J., concurs; Smith, V.P.J.,
concurs in results; Lumpkin, J., dissents; C.
Johnson, J., concurs.
Monday, July 29, 2013
F-2012-916 — Appellant Andrew Lee Harris
was tried by jury and convicted of Possession
of a Controlled Substance (Cocaine), After Former Conviction of Two or More Felonies, in the
District Court of McCurtain County, Case No.
CF-2010-204. The jury recommended as punishment imprisonment for thirty (30) years and
the trial court sentenced accordingly. It is from
this judgment and sentence that Appellant appeals. The Jdugment is AFFIRMED. The Sentence is MODIFIED TO TWENTY (20) YEARS
imprisonment. Opinion by: Lumpkin, J.; Lewis,
P.J., concur in results; Smith, V.P.J., concur; C.
Johnson, J., concur in results; A. Johnson, J.,
concur in results.
F-2012-683 — Appellant, Michaela Lewis,
was tried by jury and found guilty of child
neglect, in violation of 21 O.S.Supp.2009, §
843.5(C), in the District Court of Oklahoma
County, Case No. CF-2010-6598. The jury sentenced Appellant to one (1) year in county jail.
The Honorable Jerry D. Bass, Distict Judge pronounced judgment and sentence in accord with
the jury verdict. The trial court sentenced accordingly. From this judgment and sentence,
Michaela Lewis has perfected her appeal. AFFIRMED. Opinion by: Lewis, P.J.; Smith V.P.J.,
concurs; Lumpkin, J., concurs; C. Johnson, J.,
concurs; A. Johnson, J., concurs.
Wednesday, July 31, 2013
C-2012-714 — Darrell Odell Golden, Petitioner, entered a blind plea of guilty to Count I,
felony Larceny of Merchandise from a Retailer,
after former conviction of two or more felonies,
and to Count II as charged, Resisting an Officer, a misdemeanor in Case No. CF-2012-2159
in the District Court of Tulsa County. The trial
court sentenced Golden to imprisonment for
five years, a fine of $600 and a Victim’s Compensation Assessment of $150 on Count I and
to imprisonment for one year, a fine of $325
and a Victim’s Compensation Assessment of
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$75 on Count II, to run concurrently, with no
credit for time served. From this judgment and
sentence Darrell Odell Golden has perfected
his appeal. Petition for Writ of Certiorari
GRANTED; Conviction in Count I AFFIRMED.
Conviction in Count II REVERSED and REMANDED for further proceedings consistent
with this opinion. District court ordered to correct the Judgment and Sentence document,
through an order nunc pro tunc, to accurately
reflect the Victim’s Compensation Assessment
that was given in Count I. Opinion by: Smith,
V.P.J.; Lewis, P.J., concur in part/dissent in part;
Lumpkin, J., concur in part/dissent in part; C.
Johnson, J., concur; A. Johnson, J., concur.
Friday, August 2, 2013
F-2012-189 — Jerrod Deon Huey, Appellant,
was tried by jury and convicted of Murder in
the First Degree (Count 1) and Unlawful Possession of a Firearm by a Felon (Count 4) in
Case No. CF-2011-1026 in the District Court of
Tulsa County. The jury recommended as punishment life imprisonment with the possibility of
parole on Count 1 and five years imprisonment
on Count 4. The trial court sentenced accordingly and ordered the sentences to be served
consecutively. From this judgment and sentence
Jerrod Deon Huey has perfected his appeal. The
Judgment and Sentence of the District Court is
AFFIRMED. Opinion by: A. Johnson, J.; Lewis,
P.J., concurs; Smith, V.P.J., concurs; Lumpkin, J.,
concurs; C. Johnson, J., concurs.
RE-2012-525 — Benton Brett Black, Appellant,
appeals from the revocation of four years of his
suspended sentences in Case No. CF-2007-140 in
the District Court of Seminole County, by the
Honorable Timothy L. Olsen, Associate District
Judge. On April 3, 2009, Appellant entered a plea
of guilty to Count 1: Burglary in the First Degree;
Count 2: Prisoner Placing Bodily Fluid on Government Employee; Count 3: Malicious Injury to
Property; and Count 4: Threaten to Perform Act
of Violence. He was sentenced on Counts 1 and
2 to terms of seven years, with all but 30 days
suspended; on Count 3 to a fine and community
service; and on Count 4 to one year in the County Jail suspended, with the sentences to run
concurrently. On September 29, 2011, the State
filed the current (third) motion to revoke Appellant’s suspended sentences alleging he violated
probation by committing the crimes of Public
Intoxication and Obstructing Officer, as charged
in Seminole County District Court Case No.
CM-2011-468. Appellant confessed to the alleged
violations of probation. After hearing evidence
1542
concerning sentencing, Judge Olsen revoked
four years of Appellant’s suspended sentences.
AFFIRMED. Opinion by: A. Johnson, J.; Lewis,
P.J. , concurs; Smith, V.P.J., concurs; Lumpkin, J.,
concurs; C. Johnson, J., concurs.
Tuesday, August 6, 2013
F-2012-457 — Derrick Demario Johnson,
Appellant, was tried by jury for the crime of
First Degree Murder, in Case No. CF-20102408, in the District Court of Oklahoma County.
The jury returned a verdict of guilty and recommended as punishment life in prison with
the possibility of parole. The trial court sentenced accordingly. From this judgment and
sentence Derrick Demario Johnson has perfected his appeal. AFFIRMED. Opinion by: C.
Johnson, J.; Lewis, P.J., Concurs; Smith, V.P.J.,
Concurs; Lumpkin, J., Concurs; A. Johnson, J.,
Concurs.
COURT OF CIVIL APPEALS
(Division No. 1)
Thursday, July 25, 2013
107,918 — Tammy J. Neuwirth, Plaintiff/
Appellee, vs. Walter L. Marion and Marion
Group Development Co., Defendants/Appellants. Appeal from the District Court of Comanche County, Oklahoma. Honorable Joe B.
Reeves, Judge. Defendants seek review of the
trial court’s order denying their motion to
vacate default judgment previously granted to
Plaintiff on her claims to recover earnest money
paid after a failed real estate transaction. Defendants complain the trial court abused its discretion in refusing to vacate the default judgment, because Plaintiff did not notify them of
her intent to seek such relief by default, and
because she obtained relief by default on allegations different than those set forth in her
petition. The record made on default judgment
establishes Plaintiff was the assignee of Hawkins’ contract and the real party in interest to
seek redress for its breach. Marion was personally served with process, he forwarded the
summons to his personal attorney who did not
at any time enter an appearance or file any
motions or pleadings. Upon Marion’s failure to
timely appear, answer or plead, Plaintiff was
entitled to seek default judgment without further notice. The trial court granted judgment
based on the allegations of Plaintiff’s petition,
finding Marion failed to keep the deposit segregated as required by Oklahoma law, and the
record made supports the trial court’s judgment. Marion presented no valid excuse for his
failure to timely appear, answer or otherwise
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Vol. 84 — No. 20 — 8/10/2013
plead. Under the circumstances of this case, we
hold the trial court did not abuse its discretion
in refusing to vacate the default judgment
granted to Plaintiff. AFFIRMED. Opinion by
Joplin, C.J.; Buettner, P.J., and Bell, J., concur.
110,491 — Michael L. Morris and Ellie A.
Morris, Plaintiffs/Appellees, vs. Jane Porter,
Julie Anderson, Janderson, Inc., and Mary Sue
Veltri, Defendants, and P. Michael Veltri, Defendant/Appellant. Appeal from the District
Court of Tulsa County, Oklahoma. Honorable
Dana Lynn Kuehn, Judge. Appellant appeals
from the trial court’s interlocutory order denying his motion to stay litigation and compel
arbitration in this action arising from a franchise purchase. Appellees do not dispute the
existence of the franchise agreement arbitration provision and we agree with Appellant the
clause is quite broad. However, the dispositive
issue in this case is whether Appellees agreed
to submit their “particular dispute” of fraud
and fraudulent inducement against Appellant
to arbitration. We hold they did not. The arbitration clause was included in a document
assumed as part of the Asset Purchase Agreement that neither contained such a clause nor
referred to the franchise agreement which did.
Such circumstances indicate no agreement by
the parties to arbitrate the fraud alleged to
have been perpetrated during the Asset Purchase Agreement transaction. At the time the
Asset Purchase Agreement was being negotiated, Appellees were not “owners, Affiliates
and their respective employees” of the franchise. Thus, they did not fall within the definition of a party bound by the arbitration clause
at the time Appellant allegedly committed the
acts which form the basis of Appellees’ claims.
We hold the trial court correctly denied Appellant’s motion to compel arbitration. AFFIRMED.
Opinion by Bell, J.; Buettner, P.J., and Joplin,
C.J., concur.
111,127 — City of Norman, Petitioner, vs.
Rodney Burton and The Workers’ Compensation Court, Respondents. Proceeding to Review
an Order of The Workers’ Compensation Court.
Honorable Carla Snipes, Trial Judge. Petitioner
City of Norman (Employer) seeks review of an
order of the Oklahoma Workers’ Compensation Court which found Respondent Rodney
Burton sustained a left shoulder injury in the
course and scope of employment, as well as a
consequential injury to the right shoulder.
Employer challenges the probative value of
two medical reports. We find no abuse of discretion in the admission of those exhibits. The
Vol. 84 — No. 20 — 8/10/2013
order is not against the clear weight of the evidence or contrary to law and we sustain. SUSTAINED. Opinion by Buettner, P.J.; Joplin, C.J.,
and Goree, J. (sitting by designation), concur.
111,151 — Pat Bar, L.L.C., an Oklahoma limited liability company; and GPI Resources, Inc.,
an Oklahoma corporation, Plaintiffs/Appellants, vs. Oak Creek Oil, LLC, an Oklahoma
limited liability company d/b/a Oak Creek
Oil, Inc., Oak Creek Resources, Ltd., Oak Creek
Resources, Inc.; David Michaels, an individual;
Pepper Creek Oil & Gas Partners, Inc., a Canadian corporation, Defendants/Appellees. Appeal from the District Court of Pawnee County,
Oklahoma. Honorable Matthew D. Henry,
Judge. Plaintiffs/Appellants Pat Bar, L.L.C., an
Oklahoma limited liability company, and GPI
Resources, Inc., an Oklahoma corporation,
sought to enforce a promissory note and foreclose on the mortgage against Defendants/
Appellees Oak Creek Oil, L.L.C., an Oklahoma
limited liability company, Pepper Creek Oil &
Gas Partners, Inc., a Canadian corporation, and
David Michaels, an individual (collectively,
Oak Creek). Pat Bar and GPI appeal summary
judgment entered in favor of Oak Creek. After
de novo review, we hold there is substantial
controversy as to whether there was a promissory note which has been lost and whether Pat
Bar and GPI are entitled to enforce the lost
note. We reverse and remand for trial.
REVERSED AND REMANDED. Opinion by
Buettner, P.J.; Joplin, C.J., and Bell, J., concur.
111,200 — Tom McDonald and Miyoko McDonald, Plaintiffs, vs. Brian Nadurak, Defendant/
Third-Party Plaintiff/Appellant, vs. Kimberly
Marler, Third-Party Defendant/Appellee. Appeal from the District Court of Tulsa County,
Oklahoma. Honorary Mary Fitzgerald, Judge.
Defendant/Third-Party Plaintiff/Appellant Brian Nadurak (Appellant) seeks review of the trial
court’s orders granting the motion for summary
judgment of Third-Party Defendant/Appellee
Kimberly Marler (Appellee) on Appellant’s
claims for breach of oral contract, conversion
and indemnity, and denying his motion to stay.
Appellant and Appellee were, at one time,
married, and during the marriage, Appellant
borrowed the sum of $60,000.00, with seven
percent (7%) interest for a ten (10) year term,
from Plaintiffs, Appellee’s parents. During the
marriage, payments were made to Plaintiffs on
the loan. By agreed decree filed March 17, 2003,
the parties divorced in Texas. Pursuant to the
parties’ agreed decree, Appellant accepted the
debt to Plaintiffs as his separate debt, and he
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1543
agreed to hold Appellee harmless from liability
thereon. When Plaintiffs sued Appellant to collect the unpaid sum due on the debt, then more
than $36,000.00, Appellant asserted a thirdparty claim against Appellee, and alleged the
existence of an oral agreement with Appellee
requiring Appellee to pay Plaintiffs any sums
he paid to her in excess of his obligations under
the Texas agreed decree to reduce the debt, and
Appellee’s failure to so pay Plaintiffs, for which
Appellant sought damages for breach of an
oral contract and conversion, and asserted a
claim for indemnity if he should be adjudged
indebted to Plaintiffs. On Appellee’s motion
for summary judgment, the trial court held the
alleged oral agreement pre-dated entry of the
Texas divorce decree, and the consequent
extinction of any previous oral agreement. The
alleged oral agreement, pre-dating approval of
the parties’ settlement agreement and entry of
the Texas agreed divorce decree, could not be
proven by parole evidence. In the absence of a
valid agreement prior to approval of the parties’ settlement agreement and entry of the
agreed divorce decree, Appellant would have
to demonstrate a new contract supported by
consideration to modify the decree, which
Appellant did not do. AFFIRMED. Opinion by
Joplin, C.J.; Buettner, P.J., and Bell, J., concur.
111,247 — Kent Parkins, Plaintiff/Appellant,
vs. City of Tulsa, Defendant, and State of Oklahoma, Defendant/Appellee. Appeal from the
District Court of Tulsa County, Oklahoma.
Honorable Carlos Chappelle, Judge. Plaintiff/
Appellant Kent Parkins appeals summary
judgment entered in favor of Defendant/
Appellee State of Oklahoma ex rel. Oklahoma
Department of Transportation (ODOT). After
de novo review, we hold that ODOT is immune
from liability under the Governmental Tort
Claims Act (GTCA) and is entitled to judgment
as a matter of law. We affirm. AFFIRMED.
Opinion by Buettner, P.J.; Joplin, C.J., and Bell,
J., concur.
111,330 — Chase Home Finance, LLC, Successor by Merger to Chase Manhattan Mortgage Corporation, Plaintiff/Appellee, vs. Tania
Juarez, Defendant/Appellant, and John Doe,
Spouse of Tania Juarez, if married; Occupants
of the Premises; and Community Action Project of Tulsa County, Defendants. Appeal from
the District Court of Tulsa County, Oklahoma.
Honorable Rebecca Nightingale, Judge. Defendant/Appellant Tania Juarez appeals from
summary judgment in favor of Plaintiff/Appellee Chase Home Finance, LLC, Successor by
1544
Merger to Chase Manhattan Mortgage Corporation (Bank), in its mortgage foreclosure
action. Juarez failed to timely respond to Bank’s
Motion for Summary Judgment, which motion
shows Bank was entitled to judgment as a matter of law. We affirm. AFFIRMED. Opinion by
Buettner, P.J.; Joplin, C.J., and Bell, J., concur.
(Division No. 2)
Thursday, July 25, 2013
110,082 — Jerri Steele, Plaintiff/Appellee, vs.
V.Z. Lawton, Defendant/Appellant. Appeal
from Order of the District Court of Oklahoma
County, Hon. Geary L. Walke, Trial Judge.
Defendant/Appellant V.Z. Lawton appeals the
district court’s award of attorney fees to Plaintiff/Appellee Jerri Steele. Steele filed a counterappeal seeking an award of her entire amount
of attorney fees sought. Steele was entitled to
an award of her attorney’s fees pursuant to 12
O.S.2011 § 940 for the negligent injury to her
property, including damages for loss of use of
the property. Because Steele’s recovery for
property damage plus the amount of costs
stipulated to by the parties exceeded Lawton’s
offer to confess judgment, Steele was entitled
to recover her costs and attorney’s fees pursuant to 12 O.S.2011 § 940(B). The district court’s
award of attorney’s fees to Steele in the amount
of $7,975 bore a reasonable relationship to the
amount in controversy and was supported by all
of the facts established in the case. As such, the
district court committed no abuse of discretion
in determining the amount of fees awarded to
Steele. Accordingly, the decision of the district
court is affirmed. AFFIRMED. Opinion from
Court of Civil Appeals, Division II by Fischer,
P.J.; Barnes, V.C.J., and Wiseman, J., concur.
Friday, August 2, 2013
110,649 — George and Ana Browning, and
PTY, L.L.C., Plaintiffs/Appellants, vs. American National Property and Casualty Company,
Defendant/Appellee, and Mark Dale and Carriage Homes, Inc., Defendants. Appeal from
Order of the District Court of Oklahoma County, Hon. Donald L. Worthington, Trial Judge. In
this action for breach of insurance contract and
breach of the implied duty of good faith and
fair dealing, Plaintiffs appeal from the district
court’s order granting summary judgment in
favor of their homeowners insurance carrier,
American National Property and Casualty
Company (American National). Plaintiffs also
appeal from the denial of their motion for
summary judgment on the issue of breach of
contract. Because this Court has found that
The Oklahoma Bar Journal
Vol. 84 — No. 20 — 8/10/2013
Plaintiffs’ claimed losses fall within the construction defect and fungus exclusions in the
homeowners policy and that American
National did not breach the policy terms by
denying payment for those losses, we also
find that Plaintiffs cannot recover for bad faith
breach of the insurance contract. “Indemnity
for loss under the contract is the centerpiece of
a bad faith action.” Davis v. Health Maint. Org.,
Inc., 2001 OK 3, n.24, 22 P.3d 1204 (citing Taylor
v. State Farm Fire & Casualty Co., 1999 OK 44, ¶
9, 981 P.2d 1253). AFFIRMED. Opinion from
Court of Civil Appeals, Division II by Fischer,
P.J.; Barnes, V.C.J., and Wiseman, J., concur.
(Division No. 4)
Thursday, June 6, 2013
110,601 — James Michael Willbanks, Plaintiff/Appellant, vs. W. David Pardue, Defendant/Appellee. Appeal from the District Court
of Oklahoma County, Hon. Daniel L. Owens,
Trial Judge. James Michael Willbanks (Client)
appeals the trial court’s order dismissing his
suit against W. David Pardue (Attorney) seeking damages for legal malpractice. The trial
court held Client’s suit was untimely and the
statute of limitations had lapsed. Client appeals.
We hold that Client knew, or should have
known, that he had a cause of action for legal
negligence as early as 2006, when he was cited
for contempt for violation of an order for which
he had hired Attorney to seek either vacation
or modification. Client’s delay in filing his suit
until 2010 — after the appeal of that contempt
citation had been adversely resolved — meant
his suit was untimely filed. While Client may
not have known the exact monetary damages
he sustained, he nevertheless knew he had
been injured. The trial court correctly held the
two-year statute of limitations had lapsed prior
to the filing of Client’s suit, and therefore, the
trial court correctly granted summary judgment to Attorney as a matter of law. AFFIRMED.
Opinion from the Court of Civil Appeals, Division IV, by Goodman, J.; Thornbrugh, P.J., and
Rapp, J., concur.
Friday, June 21, 2013
110,754 — WHB Cattle, LP, Own Risk #13610,
Petitioners, vs. Laura A. Amezquita and The
Workers’ Compensation Court, Respondents.
Proceeding to Review an Order of a ThreeJudge Panel of the Workers’ Compensation
Court, Hon. C. Kent Eldridge, Trial Judge. The
record contains competent medical evidence to
support the panel’s decision affirming a trial
court order awarding Claimant medical beneVol. 84 — No. 20 — 8/10/2013
fits for a change of condition for the worse to
her left shoulder. Claimant’s evidence is competent to support a reasonable inference that
the condition of her shoulder worsened subsequent to the workers’ compensation court’s
adjudication of the shoulder injury in earlier
proceedings. Nothing in the workers’ compensation court order suggests that the award is
for benefits for a time period included in its
previous decision. That the court might have
reached a different conclusion based on the evidence presented does not change the validity of
the decision it in fact reached. Accordingly, the
panel’s decision is sustained. SUSTAINED.
Opinion from Court of Civil Appeals, Division
IV by Thornbrugh, P.J.; Goodman, J., and Rapp,
J., concur.
Monday, June 24, 2013
110,255 —Richard Roberts d/b/a Roberts Custom Wood & Trim and/or d/b/a The Roberts
Group, Plaintiff/Appellee, vs. Woodcrafters,
L.L.C., an Oklahoma Limited Liability Company,
Defendant/Appellant, and James Michael Tegler,
an individual, Defendant. Appeal from Order of
the District Court of Oklahoma County, Hon.
Daniel L. Owens, Trial Judge. Defendant Woodcrafters LC appeals the district court’s denial of
its request for statutory attorney fees against
plaintiff Richard Roberts. We find that there
remains a question whether all or part of this
suit was to collect for “labor or services provided “or a suit for profits from a contract
involving rendition of labor and services and
thus not subject to a fee award. While Roberts’
claims for the “Midwest Regional,” “Mercer”
and “Lloyd Noble” may appear to be claims
for labor and services under 12 O.S.2011 § 936,
a finding to that effect must be made by the
trial court. Further, no finding was made in the
trial court as to whether Roberts’ claims regarding the “Hill project” supported a fee award.
Again, a finding must be made as to the exact
nature of the agreement between Roberts and
Woodcrafters regarding this project and cannot
be made for the first time by an appellate court.
Moreover, the jury returned a verdict for Roberts on Woodcrafters’ counter-claim against
him. Once again, the trial court must make a
finding determining the consequence of this on
the prevailing party issue and the amount of
any award for attorney fees. Therefore, we
reverse the district court’s decision and remand
the matter of attorney fees to that court to
make the findings required in the foregoing
paragraph, and, based on those findings determine whether Woodcrafters is entitled to an
The Oklahoma Bar Journal
1545
attorney fee and the appropriate amount of
that fee, if any. REVERSED AND REMANDED.
Opinion from the Court of Civil Appeals, Division IV, by Thornbrugh, P.J.; Goodman, J., and
Rapp, J., concur.
110,609 —UMB Bank, a National Banking
Association, Plaintiff/Appellee, vs. South Kensington LTD., Co., an Oklahoma limited liability
company; BJS Revocable Trust; Bruce Scrambler,
an individual; Xtreme Operating LTD., Co., an
Oklahoma limited liability company, fka Go
Operating LTD., Co., aka Go Green Oklahoma
LTD., Co., now known as Green Oil Operating
Oklahoma LTC., Co., Defendants/Appellants,
and Xtreme Oil and Gas, Inc., a Nevada corporation; Will McAndrew, an individual; and the
State of Oklahoma, ex rel. Oklahoma Corporation Commission, Defendants. Proceeding to
review a decision of the District Court of Oklahoma County, Hon. Daniel L. Owens, Trial
Judge. Appellants (collectively “Green Oil”),
appeal the summary judgment of the district
court that plaintiff UMB Bank did not improperly refuse to change the name on a “Plugging
Bond” account contested by both Green Oil and
defendant Xtreme Oil and Gas, Inc. We find that
UMB was not entitled to a discharge as a matter
of law simply because it disclaimed any interest
in the interplead funds. UMB was required to
demonstrate a good faith belief that it stood
between two competing claimants to the Bond
Account, and that interpleader was therefore
appropriate. UMB initially met the burden on
summary judgment of showing such a dispute.
Green Oil failed in its response to show that it
could bring admissible evidence supporting its
allegations that UMB manufactured the dispute,
or used the dispute as a pretext to cover its own
alleged malfeasance or error in the matter. Consequently, we affirm the judgment of the district
court. AFFIRMED. Opinion from the Court of
Civil Appeals, Division IV, by Thornbrugh, P.J.;
Goodman, J., and Wiseman, J. (sitting by designation), concur.
Wednesday, June 26, 2013
111,230 —Chad Allen Istook, Plaintiff/Appellant, vs. David Shad Dewitt aka Chris Black;
Lawrence Earl Sanders, aka Les Riggs; Dewitt &
Sanders, LLC aka “The Bounty Boys”; Richard
Divelbliss; and Sooner Bail Bonds, Inc., Defendants/Appellees. Appeal from Order of the
1546
District Court of Cleveland County, Hon. Tom A.
Lucas, Trial Judge, granting summary judgment
in favor of Defendant Sooner Bail Bonds, Inc., on
grounds that Sooner Bail is not liable to Plaintiff
for alleged conduct by other Defendants (collectively “The Bounty Boys”), who were independent contractors hired by Sooner Bail to bring
Plaintiff in after he failed to appear in municipal
court. The record reflects that, after the trial
court granted summary judgment in favor of
Sooner Bail on Plaintiff’s theory of recovery
based on vicarious liability, Plaintiff settled with
The Bounty Boys and dismissed his action
against those defendants with prejudice. This
dismissal operated to release Sooner Bail for
vicarious liability. Plaintiff’s other theories of
recovery were premised on the alleged direct
liability of Sooner Bail for (1) conducting an
“ultra-hazardous activity,” (2) negligent hiring,
(3) breach of a non-delegable duty, and (4) private remedy based on violation of a criminal
statute. These theories are not supported by the
law under the undisputed facts in the case.
AFFIRMED. Opinion from the Court of Civil
Appeals, Division IV, by Thornbrugh, P.J.; Goodman, J., and Rapp, J., concur.
Monday, July 1, 2013
110,876 —In the Matter of the Adoption of
N.A.B., Tiffany Diane Barber, now Cossabone,
Petitioner/Appellant, vs. Christopher and LaShawna Barber, Respondents/Appellees. Appeal
from the District Court of Oklahoma County,
Hon. Allen J. Welch, Trial Judge. The trial court
respondent, Tiffany Crossbone (Mother), appeals
a Trial Court Order determining that her consent
is not required for adoption of N.A.B. by the
petitioners, Christopher Barber (Father) and
LaShawna Barber, wife of Christopher Barber.
The trial court’s decision finding that Mother
had failed to maintain a positive and substantial
relationship with N.A.B. is supported by the
clear weight of the clear and convincing evidence. The trial court’s conclusion that Mother
has not proven to the court’s satisfaction that she
has taken sufficient legal action is not contrary to
the evidence. No error of law has been shown.
Therefore, the judgment of the trial court finding
that adoption of N.A.B. may proceed without
Mother’s consent is affirmed. Opinion from
Court of Civil Appeals, Division IV, by Rapp, J.;
Thornbrugh, P.J., concurs and Goodman, J., concurs in result.
The Oklahoma Bar Journal
Vol. 84 — No. 20 — 8/10/2013
CLASSIFIED ADS
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FREELANCE LEGAL SERVICES – Lawyer with
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sides of the table is available for strategic planning,
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Admitted and practiced before the United States
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EXPERT WITNESSES • ECONOMICS • VOCATIONAL • MEDICAL
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Economic Damages, Lost Profits, Analysis, Business/
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Want To Purchase Minerals AND OTHER
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ARSONS IN OKLAHOMA, Dozens unsolved. Anytime in past two decades. Reward. Dates, locations,
photos, information needed. Contact Wesley, Choate
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Vol. 84 — No. 20 — 8/10/2013
BRIEF WRITING, APPEALS, RESEARCH AND DISCOVERY SUPPORT. Eighteen years experience in civil
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Kirkpatrick Oil & Gas is interested in purchasing
producing and non-producing oil and gas interests
Please Contact:
Land@kirkpatrickoil.com or 405-840-2882
1001 West Wilshire Boulevard
Oklahoma City, OK 73116 | Kirkpatrickoil.com
INTERESTED IN PURCHASING PRODUCING &
NON-PRODUCING Minerals; ORRI; O & G Interests.
Please contact: Patrick Cowan, CPL, CSW Corporation,
P.O. Box 21655, Oklahoma City, OK 73156-1655; 405755-7200; Fax 405-755-5555; email: pcowan@cox.net.
TREE DAMAGE, CONSULTING ARBORIST, expert
witness, tree appraisals, reports, damage assessments,
hazard assessments, all of Oklahoma and beyond. Certified arborist, OSU horticulture alumni, 23 years in
business. BillLongArborist.com; 405-996-0411.
OFFICE SPACE
EXECUTIVE SUITES @100 PARK, Downtown OKC
has 9 suites to fill in the next 30 days. Unprecedented
move-in incentives! Will be at capacity after suites are
filled. Occupancy will then be based on waiting list. A
couple of blocks from the courthouses, minutes from
the Capitol, directly across from Skirvin Hotel. Membership with EXS based on application process. Fully
turnkey. All bills including secretarial service included
in rate, starting at $1,400/month. Short- term leases
available, daily rental for conference rooms also available. You won’t find the elegance, service or great location anywhere else in OKC. Virtual Offices also available for attorneys looking for branch office in OKC
starting at $500/month. Call Tatum for details. 405-2310909 www.executivesuitesokc.com.
The Oklahoma Bar Journal
1547
OFFICE SPACE
POSITIONS AVAILABLE
MIDTOWN – 13TH & DEWEY. 2 offices (1 executive, 1
mid-size) plus 2 secretarial bays. Parking, new fax/
copier, auto voice mail, wireless internet, library/conference room, reception area, kitchen. 405-525-0033 or
gjw@gjwlaw.net.
GENERAL COUNSEL - OKLAHOMA ETHICS COMMISSION. The Oklahoma Ethics Commission, an equal
opportunity employer, seeks applicants for the position of General Counsel. Appointment will be effective
October 1, 2013. In addition to normal state agency
General Counsel duties, the successful applicant will
conduct investigations and prosecute alleged violations of the Ethics Rules and perform other duties as
assigned. Experience with state and federal Constitutional law, administrative law, Open Meeting Act, Open
Records Act and litigation all are helpful but not required. Applicants must be licensed to practice law in
Oklahoma with at least five years of experience. Persons who have submitted applications for this position
within the preceding year need not submit applications
except to update information. Applications should be
mailed to Lee Slater, Executive Director, Oklahoma
Ethics Commission, Room B-5 State Capitol, Oklahoma
City, OK 73105 or e-mailed to lee.slater@ethics.ok.gov
no later than August 30, 2013.
TULSA OFFICE SPACE with practicing attorneys, short
walk to courthouse. Includes receptionist, phone, internet and access to conference room. Office 12’ x 17’. Secretarial services and covered parking available. $475
per month. Call Lynn Mundell 918-582-9339.
OFFICE AVAILABLE FOR SOLE PRACTITIONER.
Includes office space and overhead costs such as
phone, copier, fax, conference room use and receptionist services. This can be paid for by handling limited court appearances for the law firm. Some paid
legal research and writing work may also be available. Some case referrals are also a possibility. Contact
Michael Arnett at 767-0522.
OFFICE SHARE
SOUTH OKLAHOMA CITY LAW FIRM seeks attorney
for office sharing arrangement. Rent is negotiable. The
firm may refer clients, and or have available additional
legal work. Inquiries should contact Reese Allen at
405-691-2555 or by fax at 405-691-5172.
POSITIONS AVAILABLE
OKLAHOMA CITY MEDICAL MALPRACTICE DEFENSE FIRM seeks associate with 0-3 years of litigation experience. Please email resume to Vanessa@
sweetlawfirm.com.
THE OFFICE OF THE OKLAHOMA ATTORNEY
GENERAL is currently seeking a Chief Assistant Attorney General for the Workers’ Compensation and Insurance Fraud Unit. The Unit Chief is responsible for the
day to day management and supervision of the entire
unit. Applicants must be a licensed attorney in the State
of Oklahoma with a minimum of 5 years in the practice
of law. Strong writing and oral advocacy skills are a
must. Education, training, or experience in the following is also preferred: white collar crime investigations,
financial investigations, and insurance investigations.
Experience with the healthcare or insurance industries
(property/casualty and workers’ compensation) are
also beneficial. Prior supervisory experience is also
preferred. Some travel will be required. Résumés for
the position should be sent to resumes@oag.ok.gov.
TULSA AV RATED LAW FIRM seeks attorney with 2-5
years experience for a litigation associate position.
Must be energetic and a self-starter; good communication skills a must. Litigation experience preferred. The
firm’s practice concentrates primarily on medical malpractice defense and other health care related areas.
Salary commensurate with experience; compensation
includes health insurance and other benefits. Email résumé, writing sample, salary requirement and references to hr@rodolftodd.com.
1548
The OKLAHOMA EMPLOYMENT SECURITY COMMISSION is seeking to fill a staff attorney position. Applicants must have at least 3 years of experience and be
licensed to practice in Oklahoma. The successful applicant must be able to prepare and present cases in administrative hearings and district court, speak to
groups in seminars and should have good research and
writing skills. The position will involve personnel cases, administrative hearings and appeals, and risk management cases. The salary for this position will be
$62,000 per year, plus health insurance, state retirement
and other state benefits. Interested persons may apply
by sending a résumé. All résumé must be received on
or before August 23, 2013. Please send your résumé to:
Melissa.Copenhaver@oesc.state.ok.us or Melissa Copenhaver, OESC Legal Department, P.O. Box 53039,
Oklahoma City, OK 73152-3039.
THE CITY OF ARDMORE is seeking qualified candidates for the newly created position of City Attorney.
Applicants must be members in good standing of the
Oklahoma Bar Association with a minimum of four (4)
years of experience in general areas of practice including commercial and real estate transactions. Preference
will be given to applicants with experience in representing governmental entities. The City offers excellent
benefits and competitive salaries. Interested candidates
should submit an application, along with a writing
sample, to the attention of the Human Resources Director at 23 S. Washington, Ardmore, Oklahoma 73402 by
September 30, 2013.
BUSY OKLAHOMA CITY LAW FIRM seeking a full
time legal assistant to assist with our Social Security
Disability Division. Must be self-motivated, organized
and able to work in a fast paced environment. Must
possess basic office skills, computer, phone and customer service skills. Extra consideration will be given
to candidates with experience working with Social Security Disability cases. Please email résumés to ryan@
dandavislaw.com.
The Oklahoma Bar Journal
Vol. 84 — No. 20 — 8/10/2013
POSITIONS AVAILABLE
POSITIONS AVAILABLE
OKLAHOMA CITY LAW FIRM concentrating in the
statewide representation of mortgage lenders seeks experienced title attorney. Title examination preferred.
Statewide travel required. Send résumé to to “Box T,”
Oklahoma Bar Association, P.O. Box 53036, Oklahoma
City, OK 73152.
LAW FIRM SEEKING ASSOCIATE ATTORNEY in
downtown Oklahoma City, with 3-10 years experience
in Indian Law and litigation, with a commitment to
representing tribes and tribal organizations. Preference
will be given to attorneys with demonstrated experience and/or education in American Indian Law. Applicant must be licensed to practice in at least one jurisdiction; membership in good standing in the Oklahoma
Bar is preferred, if not a member of the Oklahoma Bar,
the applicant must pass the Oklahoma Bar within 15
months. Applicant should possess excellent analytical,
writing and speaking skills, and be self-motivated.
Compensation commensurate with experience. Excellent benefits. Please submit the following required documents: a cover letter that illustrates your commitment
to promoting tribal government and Indian rights, current résumé, legal writing sample, proof of bar admission, and contact information for three professional
references to: legalapplications@yahoo.com.
ENTRY LEVEL LEGAL SECRETARY wanted for inhouse legal department with litigation and appellate
practice. Proficiency in computer applications, WordPerfect/Word/Excel required. Experience with client
relations, general office work, some trial preparation,
and pleading preparation. Salary level low $20’s with
employer paid vacation, employer paid health insurance premium, defined benefit pension plan and
matching 401(k) contributions. Send résumé to Melanie
Engh, Paralegal/Administrative Assistant, Oklahoma
Education Association, P.O. Box 18485, Oklahoma City,
OK 73154 by August 15. Equal Opportunity Employer.
THE OKLAHOMA DEPARTMENT OF HUMAN SERVICES (Legal Services) is seeking qualified applicants
for an Assistant General Counsel position in its Tulsa Office location. The successful applicant will primarily
provide legal representation and advice in adult protective services (APS) and emergency guardianship cases
in Tulsa County and surrounding area. This position
also requires expertise in the sale of real and personal
property belonging to wards. This attorney provides
training to agency APS specialists on how to prepare for
guardianship hearings and serves as the facilitator for
the Vulnerable Adult Task Force by conducting case reviews and also working closely with assistant district
attorneys when cases are criminally prosecuted. Applicants must have at least three years of relevant experience as an attorney. Salary based on qualifications and
experience. Excellent state benefits. Please send résumé,
references and writing samples to Retta Hudson, Office
Manager, Legal Services, Dept. of Human Services, P.O.
Box 25352, Oklahoma City, OK 73125.
OFFICE MANAGER/LEGAL SECRETARY NEEDED
FOR SMALL DOWNTOWN OKC FIRM. Excellent
bookkeeping and organizational skills required. Civil
and criminal experience preferred. Competitive salary
and benefits. Send résumé, references, and writing
sample to “Box G,” Oklahoma Bar Association, P.O.
Box 53036, Oklahoma City, OK 73152.
ASSOCIATE ATTORNEY: Brown & Gould, pllc, a
downtown Oklahoma City litigation firm has an immediate position available for an attorney with 3-5
years of litigation experience. A qualified candidate
must have solid litigation experience, including a proven aptitude for performing legal research, drafting motions and briefs and conducting all phases of pretrial
discovery. Salary is commensurate with experience.
Please send resume, references, writing sample and
law school transcript to tina@browngouldlaw.com.
Vol. 84 — No. 20 — 8/10/2013
ANGELA AILLES AND ASSOCIATES, in-house counsel for State Farm Mutual Automobile Ins. Co., is seeking to fill a Legal Secretary position. Ideal candidates
will have prior legal secretarial experience. Candidate
must also possess strong organizational skills with the
ability to multi-task; good oral and written communication skills; high proficiency with Microsoft Word and
Adobe; type 60 wpm; be able to work in a fast paced
and paperless environment. To view full job details and
APPLY online, visit www.statefarm.com/careers and
search Job ID #39099.
TULSA INSURANCE DEFENSE FIRM seeks Associate
to work in the area of Workers Compensation. 0 – 2 years
experience requested. Please email résumé and writing
sample with references to: HR20130@yahoo.com.
CLASSIFIED INFORMATION
CLASSIFIED RATES: $1 per word with $35 minimum per insertion. Additional $15 for blind box. Blind box word count
must include “Box ___, Oklahoma Bar Association, P.O. Box
53036, Oklahoma City, OK 73152.” Display classified ads with
bold headline and border are $50 per inch. See www.okbar.org
for issue dates and display rates.
DEADLINE: Theme issues 5 p.m. Monday before publication;
Court issues 11 a.m. Tuesday before publication. All ads must
be prepaid.
SEND AD (email preferred) stating number of times to be published to:
advertising@okbar.org, or
Emily Buchanan, Oklahoma Bar Association, P.O. Box 53036,
Oklahoma City, OK 73152.
Publication and contents of any advertisement is not to be
deemed an endorsement of the views expressed therein, nor
shall the publication of any advertisement be considered an endorsement of the procedure or service involved. All placement
notices must be clearly non-discriminatory.
The Oklahoma Bar Journal
1549
GENERAL COUNSEL
OSU/A&M BOARD OF REGENTS
Stillwater, Oklahoma
The Board of Regents for the Oklahoma Agricultural and Mechanical Colleges
invites applications for the position of General Counsel. The General Counsel
serves as the chief legal advisor to the Board and its institutions in carrying out
the duties and responsibilities of the Board.
The Office of Legal Counsel is located on the campus of Oklahoma State University in Stillwater, OK. The General Counsel is responsible for the management and coordination of all legal
services provided by the Office of Legal Counsel. The Office of Legal Counsel serves the presidents, officers, administrators, faculty, and staff in their official capacities at the five institutions
under the governance of the Board.
A job description and a list of qualifications are available at the Board’s web site http://
regents.okstate.edu/. Review of applications will begin on August 26 and continue until the
position is filled. Qualified candidates are invited to submit a current resume and letter of
interest to:
Jason Ramsey, CEO
OSU/A&M Board of Regents
2800 North Lincoln Boulevard
Oklahoma City, OK 73105
E-mail: board@okstate.edu
OSU/A&M Board of Regents is an AA/EEO/E-Verify Employer Committed to Multicultural
Diversity
1550
The Oklahoma Bar Journal
Vol. 84 — No. 20 — 8/10/2013
Vol. 84 — No. 20 — 8/10/2013
The Oklahoma Bar Journal
1551
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